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23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  MS80 

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1 

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V''' 


SUTHERLAND'S 


OF  THE  PROCEEDINGS  ON 


THE  TRIAL 


OF 


MAGKENZIE, 


C,/f./9Ji-s^6 


^:. 


/ 


i   CANVASS 


OF     THE     PROCEEDINGS     ON 


THE  TRIAL 


OF 


WILLIAM  LYON  MACKENZIE, 

FOR    AN  ALLEGED    vrOLATIO^f   OF   THE    NEUTRALITY   LAWS   OF 

THE   UNITED  STATES  ; 


WITH  A  REPORT  OF  THE  TESTIMONY— THE  CHARGE  OP  THE 

PRKSIUING  .;UDGE  TO  THE  JL'RY-THE  ARGUMENTS 

OF  THJE  UNITED  STATES  ATTORNEY-AND 


A  PETITION  TO  THE  PRESIDENT  FOR  HIS  RELEASE. 


BY  TH:  JEFFERSON  SUTHERLAND. 


SACKETT  &  SARGENT,  PRINTERS, 
No.  1  Nanau-street,  corner  of  Wall. 


1840. 


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ADVERTISEMENT. 


The  sole  object  of  this  publication,  is,  to  cause  the  President  of 
the  United  States  to  be  put  in  possession  of  a  sufficient  justifica- 
tion for  pardoning  William  Lyon  Mackenzie,  now  imprisoned 
in  the  common  jail  of  the   county   of  Monroe. 

It  must  be  known  to  the  American  public,  that  since  the  con- 
viction of  Mackenzie,  numerous  petitions  for  his  pardon  have 
been  sent  in  to  the  President  from  different  sections  of  the  coun- 
try— and  that  these  petitions  have  borne  the  names  of  many  thou- 
•ands  of  our  most  respectable  citizens.  But,  yet,  there  has  been 
no  action  by  the  President  on  these  petitions,  and  Mackenzie 
remains  a  prisoner  still,  under  the  sentence  of  the  court. 

So  far  as  I  am  informed,  the  matters  presented  for  the  consid- 
eration of  the  President,  by  the  petitions  in  Mackenzie's  behalf, 
("and  upon  which  his  pardon  has  been  asked,)  exhibit  no  ground 
for  the  Executive  favor,  except  that  of  mercy ;  .ind  on  this  ground, 
a  pardon  could  not  consistently  be  granted  to  Mackenzie,  un- 
less a  like  favor  was  conferred  on  all  the  other  individuals  who 
have  been  convicted  on  like  cliarges  under  the  same  law — and 
who  have  as  great,  and  perhaps  superior  claims,  to  urge  for 
Biercy.  Then,  the  pardoning  of  those  already  convicted  for  a 
.  Violation  of  our  neutriility  laws,  would  have  the  effect  to  put  an 
end  to  further  prosecutions  for  like  offences.  Any  act  which 
may  produce  such  an  effect,  cannot  reasonably  be  expected  at 
the  hand  of  the  President  at  this  time. 

The  law  under  which  Mackenzie  was  convicted,  is,  in  no  man- 
ner, a  domestic  affair  of  our  own,  but  a  ])art  and  parcel  of  our 
treaty  relations  with  the  United  Kingdom  of  Great  Britain  and 
Ireland,  (as  it  refers  to  the  case  in  question,)  and  while  there  is 
yet  peace  between  the  Sovereign  of  tliat  Kingdom  and  \hese 
^United  States,  no  extension  of  mercy  can  be  given  by  the  execu- 
tive of  this  country  to  any  individuals  who  have  been  les;aUy  con- 
victed of  offending  against  tliat  law,  without  violating  the  faith 
of  our  treaty  relations — and  thorefore  it  should  not  be  expected. 

Nevertheless,  to  correct  a  violation  of  our  own  laws,  brought 
about  by  the  irregularity  of  a  judicial  proceeding,  would  be  no 
act  of  mercy  to  an  offender — but  the  mere  doing  of  justice  to 


an  individual,  and  respect  to  our  own  institutions ;  and  a  per- 
formance of  that  constitutional  duty  of  the  President  which  re- 
quires him  to  cause  the  "  laws  to  be  faithfully  executed" — and 
for  this  none  would  have  a  right  to  complain. 

In  the  foilowin<r  patijes,  1  liave  endeavored  to  show  that  the 
conviction  of  Mackenzie  was  illegal ;  being  contrary  to  the  fact, 
against  the  law,  and  imsupported  by  the  testimonj^  adduced  upon 
his  trial.  If  I  have  succeeded,  I  trust  the  exercise  of  the  par- 
doning power  of  the  Executive  in  his  favor  will  meet  with  the 
approval  of  the  President's  political  opponents,  as  well  as  that  of  *" 
his  friends.  TH :  J.  SUTHERLAND. 

New- York,  December  27, 1839. 


U  i 


m. 


[tions;  and  a  per- 
esident  which  re- 
ly executed"~and 

to  show  that  the 

Intrary  to  the  fact, 

jony  adduced  upon 

lercise  of  the  par- 

•ill  meet  with  the 

as  well  as  that  of 
^THERLAND. 


pi^.TITION  TO  TIJE  PRESIDENT. 


TO    MARTIN     VAN    BUREN,    PRESIDENT  OF 
UNITED    STATES    OF    AMERICA. 


THE 


The  PetitJon  of  Th  :  Jefferson  Sutherland,  a  cit- 
izen of  the  United  t*States  of  America,  Respectfully 
shvwetli: 

That  one  William  Lyon  Mackenzie,  lately  a 
Subject  of  the  Sovereign  Queen  of  the  United  King- 
idom  of  Great  Britain  and  Ireland,  is  now  imprisoned 
in  the  Common  Jail  of  the  county  of  Monroe,  in  the 
jrtate  of  New- York. 

That  the  said  William  Lyon  Mackenzie,  was  indict- 
ed at  a  Circuit  Court  of  the  United  States  of  America, 
ield  at  the  City  Hall  in  the  city  of  Albany,  in  the 
Northern  District  of  New- York,  on  the  12th  day  of 
June,  in  the  year  of  our  Lord  one  thousand  eight 
j|iundred  and  thirty-eight,  and  charged  with  having 
.♦*inthe  year  A.  D.  1837,  within  the  territory  and 
jurisdiction  of  the  United  States,  began,  set  on  foot, 
•nd  provided  and  prepared  the  means  for  a  military 
.|»xpedition  to  be  carried  on  from  the  United  States, 

ainst  the  dominions  of  the  Crown  and  United  Kiug- 
,om  of  Great  Britain  and  Ireland." 

That  the  said  William  Lyon  Mackenzie,  in  June, 
A-  D-  1837,  was  tried  on  said  indictment  before  an 
tJnited  States  Court,  held  at  Canandaigua,  in  the  coun- 
ty of  Ontario ;  at  which  court  the  Hon.  Smith 
Thompson  presided.  That  the  said  William  Lyon  Mac- 

a2 


6 


21 

ec 
la 


^S' 


kenzie  was  convicted  at  the  said  trial  on  the  said  Indict- 
ment, and  sentenced  by  the  Hon.  Smith  Thompson,  as 
presiding  judge,  to  pay  a  fine  of  Ten  Dollars,  and  to 
be  imprisoned  in  lite  common  jail  of  Ihc  coiinlyofMon. 
roe,  for  the  term  (font  year  and  .six  months.  That  in 
pursuance  of  said  sentence,  the  ;:aid  William  Lyon  at 
Mackenzie  is  now  imprisoned  in  the  common  jail  of  ih 
the  county  of  Monroe  ;  and  for  no  other  cause.  di 

And  your  petitioner  would  further  represent,  that  sc 
he  has  seen  and  examined  the  published  report  of  the  "^ 
testimony  and  proceedings  had  on  the  trial  of  the  *" 
said  William  Lyon  Mackenzie  ;  anfi  from  theexaix\ina- 
tion  of  such  proceedings,  it  appears  that  the  chargfjs  ^^ 
upon  which  the  said  William  Lyon  Mackenzie  was  *' 
tried,  embraced  matters  and  proceedings  which  to  ^ 
your  petitioner  were  well  known  and  understood  ;  ^ 
and  that  from  such  knowledge,  your  petitioner  is  well  '* 
aware  that  the  said  William  Lyon  Mackenzie  is  not  y 
guilty  of  the  charges  of  which  he  now  stands  con-  ^* 
victed  ;  which  your  petitioner  exhibits  by  his  affida-  -^ 
vit  hereunto  annexed. 

That  from  an  examination  of  the  report  of  the 
TESTIMONY  adduced  on  the  trial  of  the  said  William 
Lyon  Mackenzie,  a  copy  of  which  is  hereunto  annex- 
ed, it  plainly  appears  that  the  testimony  does  nor  sus- 
tain the  charges  and  averments  of  the  indictment. 

That  the  charge  given  to  the  jury  on  the  trial  of 
said  William  Lyon  Mackenzie,  hy  the  Hon.  Smith 
Thompson,  the  presiding  judge,  a  copy  of  which  is 
hereunto  annexed,  was  erroneous  in  the  construction 
given  to  the  law,  and  in  the  opinion  expressed,  that 
the  evidence  adduced  sustained  the  charges  and  aver- 
ments of  the  indictnnent. 

That  on  the  trial  of  the  said  William  Lyon  Macken^ 


c 


mi 


the  said  indict- 
Thompson,  as 
Dollars^  and  to 
)ouniy  ofjMon. 
7tlhs.  That  in 
William  Lyon 
common  jail  of 
Br  cause. 

represent,  that 
d  report  of  the 
le  trial  of  the 
m  theexaifilna- 
lat  the  charg?;s 
Vlackenzie  was, 
lings  which  to 
nd  understood  ; 
Btitioner  is  well 
ackenzie  is  not 
ow  stands  con- 
ts  by  his  affida- 

REPORT  OF    THE 

e  said  William 
lereunto  annex- 
ly  does  noi  sus- 
indictment. 
f  on  the  trial  of 
the  Hon.  Smith 
)py  of  which  is 
tie  construction 
expressed,  that 
arges  and  aver- 

i  Lyon  Macken^ 


2lc,  m\ich  irrolcvnnt  testimony  was  admitted  by  the 
court,  to  bejiiven  on  the  })art  of  the  prosecution. 

That  the  said  \V'illiam  I>yon  iMackenzie,  was  ron- 
Ticted  upon  insufticient  testimony,  and  contrary  to 
lew  ;  as  will  aj)pear,  as  your  petitioner  believes,  from 
an  examination  of  *'./  Canvass  oj  llic  pun  cadhi^-s  on 
the  trial  of  llu  said  William  Lyon  JWaclcnziv^''''  ad- 
dressed by  this  deponent  to  the  Hon.  Smith  Thomp- 
son, a  copy  of  which  is  hereunto  annexed,  together 
with  the  ARiuMENTs  of  the  United  iStates  Attorney, 
mode  up  and  published  by  him,  since  said  trial. 

Wherefore,  your  petitioner  prays,  that  the  Frt-1- 
dent  will  require  a  report  of  all  the  proceedings  on  the 
trial  of  the  said  William  Lyon  Mackenzie,  ■  om  the 
Hon.  Smith  Trompson,  the  presiding  judge,  L*'d 
make  an  examination  of  the  matter — and  tbat  ic.^j.n'r^ 
1o  the  laivs  ami  justice  to  th<'  individual  may  be  done, 
by  there  being  exercised  in  favor  of  the  said  Will- 
iam Lyon  Mackenzie  the  pardoning  power  of  the 
Executive. 

i'our  })etilioner  is  aware  that  the  process  of  the 
courts,  and  the  laws  of  the  United  Stales,  afford  the 
means  for  a  correction  of  any  such  errors  of  proceed- 
ings as  those  alleged  to  have  occurred  on  the  trial  of 
the  said  William  Lyon  Mackenzie;  but,  when  it  is 
recollected  that  the  said  William  Lyon  Mackenzie  is 
an  alien,  and  a  stranger  in  the  country  ;  and  that  he 
18  altogether  unacquainted  with  the  process  and  pro- 
ceedings of  our  courts  ;  and,  therefore,  that  be  may 
hive  been  ignorant  of  the  privileges  of  our  laws,  un- 
til it  was  too  late  for  him  to  avail  himself  of  those 
privileges  ;  or,  if  his  rights  were  known  to  him,  from 
his  poverty  he  has  been  unable  to  procure  counsel  to 
apply  for,  and  prosecute  a  re-hearing  of  his  cause^ 
your  petitioner  believes  the  interference  of  the  Presi- 


4'i 


B'ri 


dent,  for  the  purpose  of  dispensing  legal  and  substan- 
tial justice,  will  be  deemed,  in  tiiis  instance,  to  hare 
been  called  for. 

And  your  petitioner  would  further  represent,  that  in 
soliciting  the  pardon  of  the  said  William  Lyon  Macken- 
zie at  the  hand  of  the  President,  he  asks  no  favor  for 
a  friend.  That  if  the  said  William  Lyon  Mackenzie 
had  been  legally  convicted  of  the  offence  with  which 
he  was  charged,  his  case,  as  your  petitioner  believes, 
would  then  have  presented  no  ground  for  the  inter- 
ference of  the  President — but  your  petitioner  being 
conscious  that  the  said  William  Lyon  Mackenzie  is 
not  guilty  of  the  charge  upon  which  he  has  been  con- 
victed, your  petitioner  is  unwilling  that  the  laws  of 
his  country  should  suffer  discredit,  by  an  irregular 
and  unjust  condemnation  of  the  said  William  Lyon 
Mackenzie — and  for  this  reason,  and  no  other,  your 
petitioner  asks  that  his  prayer,  herein  before  contain- 
ed, may  be  speedily  granted.  And  your  petitioner 
will  ever  pray,  &c. 

TH:  J.  SUTHERLAND. 

New- York,  Dec.  27,  1839. 


and  subsian- 
ance,  to  hare 

-esent,  that  in 
-yon  Macken- 
no  favor  for 
>n  Mackenzie 
e  with  which 
)ner  believes, 
for  the  inter- 
titioner  being 
Mackenzie  is 
ias  been  con- 
t  the  laws  of 
an  irregular 
'^illiam  Lyon 
>  other,  your 
bre  contain- 
er petitioner 

IRLAND. 


SUTHERLAND'S  AFFIDAVIT. 


ss. 


Jn  the  matter  of  the  trial  and  conviction  of  William 
Lyon  Mackenzie,  late  of  the  city  of  Toronto,  in 
the  Province  of  Upper  Canada,  in  the  United  States 
Court,  on  an  indictment  charging  him  with  having 
.  "  in  1837,  within  the  territory  and  jurisdiction  of 
f  of  the  United  States,  began,  set  on  foot,  and  provid- 
ed and  prepared  the  means  for  a  military  expedi- 
tion, or  enterprize,  to  be  carried  on  from  thence, 
against  the  dominions  of  the  Crown  and  United 
Kingdom  of  Great  Britain  and  Ireland." 

State  of  New-York,  ) 

City  and  Cotmiy  of  Neiu-YorJc,    5 

Th  :  Jefferson  Sutherland,  Attorney  at  Law, 
/^Deing  duly  sworn  in  the  form  and  manner  provided 
by  the  laws  of  the  state  of  New- York  for  the  taking 
of  oaths,  does  depose  and  say — that  in  December,  A. 
D.  1837,  he  resided  in  the  city  of  Bufiklo,  in  said 
state  of  New-York. 

That  in  the  early  part  of  December,  this  deponent 

was  engaged  with  a  number  of  the  inhabitants  of  the 

-Province   of  Upper  Canada,  and  others,  in  preparing 

|the  means    to  effect  a  political   revolution   in   said 

Province. 

That  on  the  11th  day  of  the  said  December,  as  this 
deponent  now  recollects,  this  deponent  was  inform- 
ed, that  William  Lyon  Mackenzie,  late  of  Toronto, 
in  Upper  Canada,  had  arrived  in  Buffalo  ;  and  that 


i 


10 


this  deponent  then  called  upon,  and  had  an  interyie\Y  -w 
with  the  said  Mackenzie,  at  the  house  of  Dr.  Chapin,  li 
in  said  city  of  Buffalo.  m 

That  this  deponent  had  never,  to  his  knowledge,  in 
seen  the  said  Mackenzie,  previous  to  the  said  11th  oi  \n 
December,  nor  had  he  ever  before  held  any  manner  at 
of  intercourse  with  him;  and  this  deponent  verily  4< 
believes  that  the  said  Mackenzie  had  no  knowledge  I^ 
of  the  intended  revolutionary  movements,  the  means  at 
for  which,  this  deponent  and  his  co-operators  were  T 
then  engaged  in  preparing.  w 

That  when  this  deponent  called  upon  the  said  Mac-  Ic 
kenzie,  he,  this  deponent,  was  informed  by  him,  that  p 
he,  Mackenzie,  had  came  to  Buffalo  for  no  other  pur-  m 
pose  than  to  avoid  an  arrest  by  the  British  Govern-  d 
ment  in  Upper  Canada — which  statement  this  depo- 
nent believes  to  have  been  true.  ^ 

That   the  motive  of  this  deponent  in  calling  on  the  oi 
said  Mackenzie  on  the  1 1th  of  December,  as  aforesaid, 
was  to  ascertain  from  the  said  Mackenzie  his  object 
in  coming  to  Buffalo — and  to  induce  him  to  do  no  act 
which  might   interfere  with  the  intended  movements 

of  this  deponent  and  his  co-operators,  with  whom  the  h 

said   Mackenzie   was  not  then   included.     That  the  ti 

said  Mackenzie,  at  the  interview,  aforesaid,  gave  his  f< 

assurance  to  this  deponent,  that  he  would  immediate-  ti 

ly  leave  the  city  of  Buffalo  and  retire  into  the  inte-  • 

rior  of  this  state,  where  he  would  contribute  articles  ^ 

to  some  public   newspaper,  which  should   favor  the  « 

movements  proposed  by  this  deponent,  and  those  who  ^ 

were  his  co-  operators — and  that  he  would  not  person-  t< 

ally  interfere   with   any   further  revolutionary  move-  * 

ments  in  the  Canadas.  ^ 

That  previous  to  the  interview  of  this  deponent  n 


»1 

^ 

ii 

e< 


11 


ad  an  interyie\r 
5  of  Dr.  Chapin, 

his  knowledge, 
the  said  11th  oi 
id  an}'  manner 
leponent  verily 
no  knowledge 
ents,  the  means 
operators  were 

>n  the  said  Mac- 
led  by  him,  that 
)r  no  other  pur- 
British  Govern- 
nent  this  depo- 

n  calling  on  the 
er,  as  aforesaid, 
nzie  his  object 
im  to  do  no  act 
ded  movements 
with  whom  the 
ded.  That  the 
resaid,  gave  his 
uld  immediate- 
e  into  the  inte- 
ntribute  articles 
ould  favor  the 
and  those  who 
)uld  not  person- 
utionary  move- 

this  deponent 


iprith  the  said  Mackenzie  on  the  11th  of  December, 
1837,  he,  this  deponent,  was  informed  that  a  public 
peeting  had  been  appointed  to  be  held  at  the  Theatre, 
f$k  Buffalo,  on  the  evening  of  the  12th  of  said  Decem- 
t|er  ;  and  that  the  said  Mackenzie  was  to  be  present 
IKt  the  meeting,  and  to  address  the  people.  That  this 
deponent,  at  his  interview,  as  aforesaid,  with  the  said 
Mackenzie,  requested  him,  the  said  Mackenzie,  not  to 
attend  the  said  meeting  appointed  to  be  held  at  the 
Theatre,  en  the  evening  of  the  12th  of  December — 
which  request  the  said  Mackenzie  declined  to  accede 
tf ,  on  the  ground  that  it  would  be  disrespectful  to  the 
people  of  Buffalo,  for  him  to  absent  himself  from  the 
meeting,  after  having  accepted  an  invitation  to  ad« 
dress  them. 

And  this  deponent  further  says,  that  he  was  present 
at  the  public  meeting  held  at  the  Theatre,  in  the  city 
of  Buffalo,  on  the  12th  of  December,  1837 ;  the  same 
spoken  of  by  the  witnesses  on  the  trial  of  the  said 
Mackenzie  ;  that  he,  this  deponent,  went  to  the  meet- 
ing in  company  with  the  said  Mackenzie,  and  remain- 
ed with  him  while  there,  and  then  left  the  meeting  in 
his  company ;  and  he  this  deponent  has  no  recollec- 
tion that  the  said  Mackenzie  while  there  "  called 
for  volunteers,  arms,  ammunition,"  or  any  other  con- 
tributions ;  and  if  the  said  Mackenzie  had  asked  for 
•ay  such  contributions,  this  deponent  believes  he 
Utould  have  heard  it.  That  previous  to  the  meeting 
#the  Theatre,  on  the  12th  of  December,  there  had 
blen  in  the  city  of  Buffalo  a  public  meeting  convened, 
to  consider  the  condition  of  the  people  of  the  Canadas, 
at  which  meeting,  there  had  been  appointed  an  Execu- 
tive Committee,  for  the  purpose  of  "  calling  future 
"^^etings  in  relation  to  the  affairs  of  the  Canadas — and 


U 


12 


to  adopt  such  other  measures  as  might  be  called  for 
by  public  opinion."  That  after  this  meeting  on  the 
5th  of  December,  this  deponent  had  been  absent  from 
Buffalo,  and  having  returned  on  the  evening  of  the 
11th,  he,  this  deponent,  was  informed,  as  aforesaid,  of 
the  meeting,  appointed  for  the  12th,  to  be  held  at  the 
Theatre.  That  after  learning  of  tlie  appointment  of 
the  meeting  for  the  12th,  he,  this  deponent,  saw  one 
of  the  committee  appointed  at  the  previous  meeting, 
and  complained  to  him  of  the  calling  of  the  subsequent 
meeting — when  this  deponent  was  answered  by 
that  gentleman  of  the  Committee,  "  that  the  meet- 
ing had  not  been  called  by  the  Committee."  That 
this  deponent  then  declared  to  the  said  member  of  the 
Committee,  *'  that  the  holding  of  this  subsequent 
meeting  was  calculated  to  frustrate  the  intended  oper- 
ations in  which  this  deponent  was  then  concern- 
ed— and  in  its  effect,  more  likely  to  injure  than  bene- 
fit the  cause  of  the  Canadian  Patriots.  That  to  this, 
the  gentleman  of  the  Committee  replied,  "  that 
this  deponent  might  possibly  get  something  out  of  the 
tail  of  the  meeting  to  make  up  for  the  injury  received.' 
That  this  deponent  then  attended  said  meeting,  on  the 
12th  of  December,  and  while  there  present,  was  call- 
ed upon  by  the  audience  to  address  them — and  die 
so — and  in  conclusion,  said — *'  he  was  going  to  Can- 
ada as  a  volunteer,  to  assist  the  people  of  the  colonies 
in  achieving  their  independence" — and  then  askec 
"  if  there  were  any  others  present  in  the  assembb 
who  would  go."  That,  then,  as  the  meeting  was  a- 
bout  to  be  brought  to  a  close,  this  deponent  request- 
ed a  gentleman  who  was  present,  to  ask  the  people 
composing  the  assembly,  to  contribute  "  arms  ace 
munitions  of  war  for  the  benefit  of  the  people  of  Cm' 


13 


;ht  be  called  for 
Tieeting  on  the 
een  absent  from 

evening  of  the 
,  as  aforesaid,  of 
J  be  held  at  the 

appointment  of 
lonent,  saw  one 
jvious  meeting, 
:  the  subsequent 
5  answered  by 
*  that  the  meet- 
imittee."  That 
d  member  of  the 
this  subsequent 
e  intended  oper- 
s  then  concern- 
njure  than  bene- 
I.     That  to  this, 

replied,  *'  that 
jthing  out  of  the 
njury  received.'' 
I  meeting,  on  the 
resent,  was  call- 

them — and  die 
is  going  to  Can- 
e  of  the  colonies 
-and  then  askec 
in  the  assemblj 

meeting  was  a- 
jponent  request- 
to  ask  the  people 
bute  "  arms  ace 
le  people  of  Can- 


Ida — and  to  bring  such  as  they  should  be  disposed  to 
contribute,  to  the  Eagle  Tavern,  in  the  city  of  Buffalo, 
where  they  would  be  received.""  That  this  request 
then   immediattely  complied  with  by  the  gentle- 


as 


I 


an  to  whom  it  was  made,  without  having  communi- 
ated  with  Mackenzie  on  the  subject      That  this  de- 
ponent had    not  spoken    or   conferred    with   the  said 
5^ackenzie  on  the  subject  of  asking   any   such   con- 
tributions of  the  people  of  Buffalo.     That  he,  this  de- 
ionent,    was  induced  to  request    the  solicitation  for 
arms,  &c.  to   be  made,  by  the  suggestion  given  him 
^  the  gentleman  of  the  Committee,  before  mentioned. 
Ithat  this  deponent  verily  believes,  he,  the  said  Mac- 
kenzie, had  no  knowledge  that  a  contribution  of  arms, 
«r  any  thing  else,  would   be  asked  for  the  benefit  of 
the  people  of  Canada,  at  the  said  meeting  on  the  i2th 
of  December,  until  the  same  had  been  done. 
I    And  this  deponent  further  says,  that  after  the  said 
ineeting  on  the  12th  of  Dec.  had  adjourned,  a  proces- 
•jon  was  formed  in  the  street,  with  a  band  of  music, 
with  which  this  deponent  marched   through   several 
lireets   of  the  city  of  Buffalo,  as  he   now  recollects, 
iput,  that  this  deponent  did  not  see  or  know    of  the 
laid  Mackenzie  being  with  the  said  procession  ;  and 
If  the  said  Mackenzie  had  been  with  it,  this  deponent 
iDelieves  he  would  have  known  it. 
•    That  after  the  meeting  at  the  Theatre  on  the  12th 
|||f  December,  this  deponent  having  collected  a  quanti- 
of  arms,  munitions  of  war  and  military  stores,  he 
jmoved  the  same  to  Black  Rock.     That  this   was 
)ne  without  tho  knowledge  or  advice  of  the  said 
Jilackenzie.    That  this  deponent  did  not  ever  commu- 
nicate to  the  said  Mackenzie  the  object  he  had  in  view 
an  proceeding  to  Black  Rock  on  that  occasion. 
i»    That  while  this  deponent  was  at  Black  Rock,  sonie 

B 


I'  •     i    « 


14 


individuals  brought  down  to  that  place  a  quantity  of 
muskets  and  soldiers'  accoutrements,  which  were 
claimed  by  one  Lester  Brace,  and  some  others,  as  hav- 
ing been  surreptitiously  taken  from  the  Court  House 
in  Butfalo.  That  while  Brace  and  the  other  individu- 
als were  at  Black  Rock  for  the  purpose  of  claiming 
and  ta.xing  away  the  arms  mentioned,  as  they  alleged, 
the  said  Mackenzie  came  there  without  the  request, 
and  contrary  to  the  wish  and  desire  of  this  deponent, 
and  objected  to  any  of  the  arms  claimed  by  Brace  being 
carried  away,  and  got  into  a  dispute  with  one  Barton 
and  others,  which  induced  this  deponent  to  request  the 
said  Mackenzie  to  go  away  ;  which  he,  Mackenzie, 
refused  to  do  ;  and  this  deponent  then  left  B!ack  Kock 
and  went  to  Buffalo,  for  the  purpose  of  procuring  a 
gentleman  there,  to  go  down  and  bring  Mack^  nzie 
away. 

That  after  the  first  intended  enterprise  in  which 
this  deponent  had  been  concerned,  had  fallen  through, 
(about  the  1 4th  of  Dec  )  this  deponent,  at  the  sug- 
gestion of  some  other  individuals,  but  without  the 
knowledge  or  privity,  advice  or  consent  of  the  said 
Mackenzie,  conceived  a  plan  for  organizing  a  military 
force  on  Navy  Island,  in  the  Province  of  Upper  Can- 
ada, and  commenced  the  necessary  arrangements  for 
that  purpose.  That  when  these  proceedings  were  en- 
terctd  upon,  there  was  no  arrangement  or  understand- 
ing between  this  deponent  and  the  said  Mackenzie^ 
that  he  should  be  engaged  or  concerned  in  any  such 
matter ;  and  this  deponent  had  then  no  belief  or 
thought  that  the  said  Mackenzie  would  join  him,  or 
become  in  any  manner  concerned  in  the  organization, 
o:  the  maintaining  of  a  military  force  on  Navy  Island. 

That  when  the  said  Mackenzie  joined  the  persons 
who  were  acting  with  this  deponent,  and  who  were 


m 


16 


i  a  quantity  of 

which  were 

thers,  as  hav- 

;  Court  House 

iher  individu- 

>e  of  clnimins: 

they  alleged, 

it  the  request, 

his  deponent, 

y  i3race  being 

h  one  Barton 

to  request  the 

le,  Mackenzie, 

;ft  Black  Kock 

)f  procuring  a 

ng  Mackenzie 

rise  in  which 
fallen  through, 
it,  at  the  sug- 
t  without  the 
nt  of  the  said 
zing  a  military 
jf  Upper  Can- 
rangements  for 
dings  were  en- 
or  understand- 
lid  Mackenzie, 
id  in  any  such 
no  belief  or 
i  join  him,  or 
i  organization, 
1  Navy  Island. 
id  the  persons 
md  who  were 


then  about  to  take  possession  of  Navy  Island,  this  de* 
ponent  objected  that  the  said  Mackenzie  had  been 
Drought  to  join  them — to  which  objection  this  depo- 
lent  was  answered  *'  that  it  was  feared  by  the  people 
ni  Buffalo,  that  the  Governor  of  ihe  Stale  of  New- 
York  would  surrender  the  said  Mackenzie  to  the 
Briti.sh  authorities  in  Canada,  on  the  request  which 
had  been  made  for  him  by  the  Governor  of  the  Upper 
Province  ;  and  that  he  had  been  sent  down  by  them,  to 
place  him  safe  from  an  arrest  and  surrender  ,"  and 
ibat  with  the  motive  of  his  own  personal  safety,  and 
liio  other,  as  this  deponent  verily  believes,  the  said 
Mackenzie  entered  upon  Navy  Island. 

And  this  deponent  further  says,  that  he  was  one  of 
the  principal  officers  who  took  possession  of  Nary 
Ikland,  and  organized  a  military  force  thereon,  in 
Jjec,  1837;  and  this  deponent  knows  of  no  means  hav- 
.rag  been  provided,  or  prepared  by  the  said  Mackenzie 
JK>r  that  purpose  ;  and  if  the  said  Mackenzie  had  pro- 
vided, or  prepared  any  such  means,  this  deponent  be- 
lieves it  would  have  come  to  his  knowledge. 

And  this  deponent  further  says,  that  he  did  not  at 
any  time  receive  any  money,  or  other  means,  from  the 
laid  Mackenzie,  to  be  used  or  expended  in  the  organ- 

i2ing  and  maintaining  of  any  military  expedition  or 
interprize  set  on  foot,  or  begun  in  the  United  States,  to 
"he  carried  on  against  any  other  nation  or  people  with 
^hom  we  are  at  peace — and  that  this  deponent  has 
liot  at  any  time  acted  under,  or  bf^en  directed  by  the 
jirders  or  suggestions  of  the  said  Mackenzie.  And 
ibrther  this  deponent  says  not. 

TH:  J.  SUTHERLAND. 

Sworn  before  me  the  19th  > 
day  of  December,  1839.      \ 

Andrew  Warner,  Commissioner  of  Dsedt^ 


\A 


^^ 


A  CANVASS 


m 


u 

OF  THE  PROCEEDINGS  ON  THE  TRIAL  OF  ^ 
WILLIAM  LYON  MACKENZIE. 

t1 

K 

b 
ft 
c 

y 

o 

ti 
V 

i; 
t 


2^0  the  Honorable  Smith  Thompson,  one  of  the  Jus- 
tices of  the  SujJi'eme  Court  of  the  United  States  oj 
*B.merica, 


■({I 


Sir — Believing  you  to  possess  a  principle  of  jus- 
tice that  will  command  you  at  all  times  to  respect  the 
rights  of  individuals,  though  they  may  be  surround- 
ed by  a  mist  of  prejudices — and  that  you  are  not 
without  that  spirit  of  candor  and  frankness  whicli 
particularly  becomes  those  whom  the  confidence  oi 
the  citizens  of  the  United  States  has  called  to  fill  the 
most  high  and  exalted  judicial  stations  of  our  country, 
I  have  assumed  the  liberty  of  addressing  to  your  hon- 
or "  Ji  Canvasfi  of  the  Proceedings  on  the  Trial  of  Will- 
iam Lyon  Mackenzie ^"^^  before  an  United  States  Court, 
held  at  Canandaigua,  in  June,  1837,  (at  which  your 
honor  presided,)  on  an  indictment  charging  the  said 
Mackenzie  with  having  "  within  the  territory  and  ju- 
risdiction of  the  United  States,  began,  set  on  foot, 
provided  and  prepared  the  means  for  a  military 
expedition  and  enterprize,  carried  on  from  the  United 
States  against  the  territory  and  dominions  of  the  Sove- 
reign Queen  of  the  United  Kingdom  of  Great  Britain 
and  Ireland."  On  which  trial  Mackenzie  was  con- 
victed and  sentenced  by  your  honor,  as  presiding  judge, 
"  to  pay  a  fine  of  $10,  and  to  be  imprisoned  for  the 


IT 


e  trial  of 
:nzie. 


one  of  the  Jus- 
United  States  oj 

rinciple  of  jus- 
es  to  respect  the 
ay  be  surround- 
at  you  are  not 
rankness  whicli 
confidenee  of 


called  to  fill  the 
IS  of  our  country 
ing  to  your  hon- 
he  Trial  of  Will. 
ted  States  Court, 
(at  which  your 
larging  the  said 
territory  and  ju- 
n,  set  on  foot, 
for  a  military 
from  the  United 
ons  of  the  Sove- 
of  Great  Britain 
cenzie  was  con- 
I  presiding  judge, 
prisoned  for  the 


:m  of  one  year  and  six  months  in  the  common  jail 
lifthe  county  of  Monroe,"  where,  in  pursuance  of 
ilid  sentence,  he  now  reniains  incarcerated. 

The  object  of  this  Canvass,  is,  to  exhibit  th^  fact 
tfcat  Mackenzie  has  been  cojivicted  contrary  to  the  ev- 
idence exhibited  asrainst  him,  and  the  law  applica- 
ble to  his  case— and  that  he  is,  therefore,  now  suf- 
fering an  impribonnient  under  an  illegal  and  irregular 
condemnation  ;  and  if  1  shall  succeed  in  convincing 
yibur  honor,  as  1  believe  I  may,  that  the  proceedings 
tMb  the  trial  of  Mackenzie  were  irregular  and  defec- 
W^e,  I  niust  believe  your  honor  will  then  immediate- 
ly^ comniunicate  an  opinion,  to  that  effect,  to  the  Pres- 
ident of  the  United  States,  to  the  end  that  he  may 
iiiiuse  justice  to  be  done  to  the  individual,  and  respect 
li^  be  given  to  the  staiutes  and  laws  of  our  country,  by 
■tikercising  the  pardoning  power  of  the  Executive  in 
faits  favor. 

•Your  honor  will  understand  that  I  ask  no  favor  for 
afriend— nor  do  I  write  for  an  individual  whom  I  es- 
teem. But  being  conscious,  from  my  own  personal 
ktoowledge,  that  Mackenzie  is  not  guilty  of  the  charge 
for  which  he  has  been  condemned,  and  for  which  he 
H  now  suffering  the  penalty;  and  from  an  examina- 
^n  of  the  published  reports  of  the  testimony  addu- 
tiid  on  the  trial — the  ar^umants  of  the  United  States 
torney,  made  up  and  published  by  him  since  the 
al — and  your  honor's  charge  to  the  jnry,  believing 
to  be  plain  and  palpable  that  he  has  been  convicted 
ll^n  the  showing  of  facts,  which,  however  true  in 
themselves,  are  entirely  insufficient  to  hold  him  cul- 
pable within  the  intent  and  meaning,  or  proper  con- 
itruction  of  the  letter  of  the  law  under  which  he  has 
%feen  indicted  and  tried,  the  respect  and  love  I  bear 

C 


\A 


!l 


I 


tr 


iiii' 


IBif' 


e 


IH 


for  the  institutions  and  laws  of  my  country,  hate  C 
moved  me  to  make  this  appeal  to  your  honor,  tha:  /, 
"  the  innocent"  may  no  longer  be  made  to  suffer  ai  p 
the  hand  of  the  law,  whether  he  be  friend  or  foe. 

In  the  indictment,  the  first  count  charged  Mac 
kenzie  with  having  "  within  the  territory  and  jurisdic 
tion  of  the  United  States  of  America,  began  a  cer.  c 
iainmiliinry  expedilion, to  he  carried  on  from  thence  ^ 
against  the  territory  and  dominions  of  Iler  Bt^ilanic  ^ 
Majesty  ;  the  said  United  States  then  being  at  peace  * 
with  Her  Britanic  j'Mcijesti).''^  The  second  and  tliirc  ** 
counts  were  alike,  and  charged  him  with  havinff  sel  ^* 
mi  fool  a  certain  military  cnterpvizc,  to  be  carried  on  " 
under  like  circumstances,  against  the  dominions  ol  " 
Her  BriUmir,  JS'Jajesly.  The  fov.rtli  mid  fij'lli  counts  t 
were  alike,  and  charged  him  with  having  provided  tlu  * 
means  for  a  certain  military  eapedHion,  to  be  carried  ' 
on  under  like  circumstances,  against  the  dominions  P 
of  Her  Britanic  Majeshj.  The  sixth  and  seventh 
counts  were  alike,  and  charged  him  with  having  jsre- 
pared  (he  means  {or  a  certain  military  expedition ^  to 
be  carried  on  under  like  circumstances,  against  the 
dominions  of  Her  Britanic  J\lajestij.  The  eighth  and 
?'tfi^/i  counts  were  alike,  and  cherged  him  with  hav- 
ing provided  the  means  for  a  certain  military  enter- 
prize,  to  be  carried  on  under  like  circumstances  a- 
gainst  the  dominions  of  Her  Britanic  Majesty.  The 
i«n</i  and  eleventh  counts  were  alike,  and  charged  him 
with  having  prepared  the  means  for  a  certain  military 
enterprize,  to  be  carried  on  under  like  circumstances, 
against  the  dominions  of /fer  Britanic  Majesty.  The 
twelfth  count  charged  him  with  having  began  and  set  on 
foot  a  certain  military  expedition  to  be  carried  on  under 
like  circumstances,  against  a  colony  belonging  to  the 


■nl 


lem 


VJ 


country,  hat? 
our  honor,  tha; 
ade  to  suffer  ai 
friend  or  foe. 

t  charged  Mac 
ory  andjurisdic. 
:a,  began  a  cer. 
on  from  thence 
of  Her  Brilanic 
n  being  at  peace 
pcond  and  tlim 
I  with  having  sn 
o  he  carried  on 
le  dominions  of 
ind  fiflh  counts 
'ing  provided  f/i( 
,  to  be  carried 
the   dominions 
'/'    and   seveutli 
vith  having  j(9re- 


expediiiorjj   to 
es,  against  the 
The  eighth  and 
i  him  with  hav- 
military   enter- 
rcumstances  a- 
Majedy.     The 
tid  charged  him 
ertain  military 
circumstances, 
Majesty.    The 
eganandseton 
irriedon  under 
Dlonging  to  the 


Cfjoion  and  United  Kingdom  of  Great  Britain  and  Ire- 
l0d.  The  thirteenth  count  charged  him  with  having 
pkfivided  and  prepared  the  means  for  a  certain  military 
tgpeditiony  to  be  curried  on  under  like  circumstances, 

2[ainst  a  colony  belonging  to  the  Crown  and  United 
ingdom  of  Great  Britain  and  Ireland.  Tht  fourteenth 
count  charged  him  with  having  began  and  set  on  foot  a 
certain  military  expedition  to  be  carried  on  under  like 
circumstances  against  some  foreign  state  unknown. 
l^t  fifteenth  count  charged  him  with  having  provided 

S  prepared  the  means  for  a  certain  military  expeditiop, 
e  carried  on  under  like  circumstances,  against  some 
foreign  state  unknown.  The  sixteenth  count  charged 
him  with  having  began  and  set  on  foot  a  certain  milita- 
ry «rt/crpn?c,  to  be  carried  on  under  like  circum- 
l||inces,  against  some  foreign  state  unknown.  The 
90pfnteenilty  and  last  count,  charged  him  with  having 
pfovided  and  prepared  the  means  for  a  certain  milita- 
ry enterprizej  to  be  carried  on  under  like  circumstan- 
c^8,  against  some  foreign  state  unknown. 

This  indictment,  we  are  told  by  the  United  States 
Attorney,  (and  it  is,  also,  so  stated  in  the  charge 
given  by  your  honor  to  the  jury,)  was  based  upon 
the  sixth  section  of  an  Act  of  Congress,  of  1818,  which 
is  as  follows  : 

?i  *'  §6.  That  If  any  person  shall,  within  the  terri- 
tftry  or  jurisdiction  of  the  United  States,  begin,  or  set 
e^foot,  or  provide,  or  prepare  the  means  for  any  mil- 
ittry  expedition,  or  enterprize,  to  be  carried  on  from 
thence  against  the  territory  or  dominions  of  any  for- 
eign prince,  or  state,  or  any  colony,  or  district,  or 
people,  with  whom  the  United  States  are  at  peace, 
«very  pv^.rson  so  ofTending,  shall  be  deemed  guilty  of 
•  high  misdemeanor,  and  shall  be  fined  not  exceed- 


20 


h 


:l 


ing  three  thousand  dollars,  and  imprisoned  not  more 
than  three  years." 

By  this,  it  is  established  that  the  offence  with  which 
Mackenzie  was  charged,  was  created  hy  the  above 
section  of  a  statute  ;  and  in  the  traverse  of  ail  in- 
dictments founded  upon  statutory  otlences,,  there  are 
these  three  branches  of  enquiry  to  be  pursued  : 

1st.  What  is  the  intent  and  meaning  of  the  stat- 
ute, or  proper  construction  of  its  letter  ? 

J2d.  Has  there  been  any  offence  committed  against 
the  provisions  of  the  statute,  according  to  its  true  in- 
tent and  meaning  ? 

3d.     Has  ihe  accused  committed  such  offence  ? 

In  order  correctly  to  derive  the  intent  and  meaning 
of  a  statute,  we  nuist  look  to  the  motive  whicii  moved 
the  legislative  authority  to  its  enactment.  This  is 
always  to  be  taken  into  consideration  in  construing 
the  letter  of  a  law.  I  cite  black.  Com.  vol.  I,  p.  CI, 
in  support  of  this  position. 

The  United  States  Attorney,  in  the  l.«?t  paragraph 
of  his  statement  of  the  cause  to  the  jury,  has  said — 
"  this  law  was  enacted  to  enable  those  who  might  be 
entrusted  with  the  administering  of  :he  government 
of  this  country,  to  maintain  the  neutral  relations  and 
and  treaty  obligations  of  the  country  ;"  and  in  the 
10th  paragraph  of  your  honor's  c/iar^c  to  the  jury,  it 
is  said  that  ''  this  law  contemplates  an  expedition  to 
be  commenced,  or  to  be  set  on  foot,  within  the  Uni- 
ted states,  and  to  operate  upon  and  against  some  pow- 
er with  which  we  are  at  peace." 
T^  ^o  far,  in  this  general  construction  of  the  statute, 

yitl"  both  your  honor  and  the  United  States  Attorney  are 
^^  unquestionably  correct.  It  is  the  undoubted  mean- 
ly    ing  of  the  law.     But  your  honor,  as  well  as  the  Uni- 


i 


mmm 


oned  not  more 

nee  with  which 

'>/  the  nhove 

rse    of  all 


:es. 


(h 


in- 


j»  inere  are 
pursued  : 

g  of  the  Stat- 

nutted  against 
to  its  true  in- 

'i  offence  ? 
and  meaning 

^vhichnioved 
nt.     This   is 

1   construing 

^"^-  h  p.  CI, 

sf  paragraph 
has  said— 
ho  might  be 
government 
elaJions  and 
and  in  the 
Hie  jury,  it 
pedition  to 
n  the  Uni- 
some  pow- 

he  statute, 
orney  are 
ed  mean- 
8  the  Uni- 


4 

i 


21 


ted  States  Attorney  has  gone  on  and  giren  a  more 
extended  construction  to  the  law,  which  1  conceive 
it  does  not  admit  of — and  which,  I  believe  I  shall  be 
able  to  convince  your  honor,  was  altogether  in  error; 
and  that  it  tnnst  have  had  an  unjust  effect  upon  tho 
minds  of  the  jury  in  their  determination  of  the  ques- 
tion of  the  guilt  or  innocence  of  Mackenzie. 

The  whole  extent  of  the  provisions  of  the  statute  un-^ 
der  which  Mackenzie  was  tried,  and  the  only  acts 
made  penal  by  it,  are  the  he^inning,  or  the  setting  on 
foot,  or  the  providiiiii;,  or  the  preparing  of  the  means 
for  a  militarT/  expedition  or  enterprize  within  the  ju- 
risdiction of  the  United  States,  to  be  carried  on  from 
thence  against  some  country  or  people  at  peace  witk 
the  United  States — and  no  more  can  be  properly  giv- 
en to  it.  Yet,  it  was  said  by  the  United  States 
Attorney,  in  his  statement  of  the  cause  to  the  court 
and  the  jury,  (as  it  appears  by  his  7th  paragraph,) 
**  that  he  had  reflected  much  and  deeply  upon  the 
construction  which  this  provision  of  the  act  of  Con- 
gress should  receive  ;  and  afler  consulting  the  most 
approved  authors  in  our  language,  he  felt  satisfied, 
that  no  person,  whether  citizen  or  alien,  can,  within 
the  territory  or  jurisdiction  of  the  United  States,  en- 
ter  upon,  commence,  promote,  or  put  forward,  or  sup- 
ply, procure,  or  make  ready  the  instruments  for  any 
warlike  undertaking^  or  attempt,  or  attack,  to  be  con- 
veyed or  conducted  out  of  the  territory  and  jurisdic- 
tion of  the  United  States,  into  the  territory  and  dis- 
trict of  country;  or  to  oppose  or  put  down  the  author- 
ity of  any  fpreign  prince,  or  state,  or  of  any  colony, 
or  people,  with  whom  the  United  States  are  at  peace, 
without  subjecting  himself  to  a  prosecution  under  tbitf 
act."  Now,  the  most  of  these  terms  are  unknown  to 
the  provisions  of  the  statute— and,  surely,  the  learned 


w 


•t^wf^ 


22 


? 


■t 


gentleman  must  have  hpfnrr^^  1 1  • 
h  too  much  refleciro3„l^  '^-^oning  facahies 
"on   ofthestatuteofisis  oH,r''"'5°'" ''''«««<=- 
came  to  such  a  strained  conol.li  """''^  "^"*'  have 
;j.;raW,  Which,.  ev^;S---J-ea„. 

as  I  perceive,  to  give  it  such  i  .  "'^  "''''"  '"'"'red, 
tions  met  with  so  much  suo.r  ^  ^  "'^S'-et  his  exer- 
the  result  ofMacIc^n^.vS  ''^^,7'^*""''  ^r 
t  is  shown  by  the  7th  para iTath  ^f  i"''' ">«  j"ry,  as 
the  cause,  that  this  provision  of  L.."  ^'="«'n<'nt  of 
what  m  legal  parlance  is  cL°"edtl.f  "^'f ''  "  ''"^  "ot 
use  of;   and  that  we  must  "esont   "' '"""''  "^de 

to  ascertain  what  particuL  act    4eh"  *"'''^^'"'«« 
en  ;"  and  from  this  he  start^^       ,?   "'^'"^'n  foi-bid- 

t'on,  and  anon  he  was  lo  t  n  f  °,"  '"^'""°  of  reflec- 

the  statement  of  the  Un^llrf" I,  '=/°"'', '     ^n  answer  to 

-tosay  that  if  this '^rxt'c\t%fr{'  '^"^^ 
181S,  contamsno  techniV»l  .  •  '"«  statute  of 

Plam  English  ones,  whX  ed™\;'   ^»««  conta,"/ 

by  a  school  boy.     The  termslffi/ „       '"'^"nde'-stood 

not  tobe  readfiy  co'mpre'rendeT"  Th '"^  '^^"  kn«>vn 
stituted  by  the  mere  coming!;'  n  ^^  ^'^  "ot  con- 
njen  at  the  impulse  of  the  Imfn,^?  <"■«  """ber  of 
the  gratification  of  idle  currsL  ''  ""^  "t"""^'  °^  ^r 

possession  of  arms  and  muSro;'   \  "'^   •>«« 
d.v.duals-but  by  the  organilat.vfn    7^'  ^^  ^  '"^'^  '">- 

expedfion  or^enterLl^^h  '  '"""=">'  <=haracter  for 
with  subordinate  officers' a^r-u"'"'"  ^  commander 


•1 


¥:&:' 


-» 


23 


'ng  faculties 
of  this  see- 
never  have 
1^  the  mean- 
's P'ain  and 

as  no  misti- 
'as  labored, 
et  his  exer- 
^tlenced  by 
^ejury,  as 
atenicnt  of 

'^  lias  not, 
'^nis,  made 
authorities 
-'n  forbid- 

ofreflec- 
answer  to 
-y*  permit 
statute  of 
's  contain 
nderstood 
'«^«o«,  and 
'"  known 
not  con- 
umber  of 
-e,  or  for 
he   bare 
*/ew  in- 
'1  some 


3ter  for 
inlander 
togeth- 
e  supe- 


■•« 


'iil|: 


nor  the  right  to  control  the  inferior.  Without  such 
organization,  there  is  no  military  character  establish- 
ed— and  no  body  of  men  would  be  able  to  carry  on 
either  expedition  or  enterprize  ;  they  would  be  alto- 
gether powerless,  capable  of  effecting  nothing,  and 
need  the  aid  of  no  neutrality  law  to  restrain  them. 

Cons^ress  has  never  intended  to  restrain  the   citi- 
zens o  'the  United  States  from  entering  foreign  ser- 
vice— or  from  furnishing  the  means  for  carrying  on  a 
war  to  any  belligerents  whom  they  please.    Any  man, 
whether  he  be  citizen  or  alien,  has  a  right  to  go  from 
our  shores  and  join  either  the  loyalists  or  rebels  of 
any  other  country — and  carry  with  him   munitions 
of  war,  if  so  he  is  disposed,  and  no  law  is  broken  there- 
by— and  no  treaty  obligation  infringed.     To  carry  on 
a  military  expedition  or  enterprize,  organization  is  the 
"notrt  thing  ;    and  to   prevent  this  being  done  within 
our   borders,  of  forces  intended  to  be  marched  into 
other  territories,   is   the  object  of  this  enactment  of 
Congress  of  1818  ;  and  this  is  all  that  any  nation  or 
people  have  a  right  to  demand,  by  virtue  of  a  treaty 
of  amity  and  peace.     Then,  to  constitute  a  military 
organization,  there   are  two   important  requisites  or 
agents :  the  one  who  gives  t^^e  detail   of  duty,  and 
who   must   be   the  commander,  and  necessarily  the 
one  who  should  begin  and  set  on  foot  a  military  ex- 
pedition  or  enterprize  ;  and  he  who   provides  and 
prepares  the  means,    which  in  all  military  operations 
are  understood  to  ba  the  funds  for  the  payment  of  the 
soldiers — and  for  the  purchase   of  stores    and  muni- 
tions of  war.     Thus,  it   may  be  plainly  seen,  the  in- 
tent and  meaning  of  this  sixth  section   of  the  statute 
of  1818,    is   to   prevent   the  organization  of  military 
forces  within  the  Jurisdiction  of  the  United  States,  to 


24 


k 


f  ' 


1.^ 


\i 


act  agalDflt  a  friendly  nation  or  people — to  which  or- 
ganization, the  first  and  most  essential  agents  are 
the  commanders,  and  those  who  furnish  the  means, 
(cither  in  kind,  or  monies ;)  and  such  persons  are 
alone  intended  to  be  held  culpable  under  this  law. 
This  is  all  it  is  intended  to  embrace — and  the  absurd- 
ity of  the  United  States  Attorney,  in  attempting  to 
maintain  that  the  law  meant  more  than  it  has  ex- 
pressed— "  that  all  who  entered  upon,  promoted,  or 
put  forward,  or  supplied,  or  made  ready  the  instru- 
ments, for  any  war-like  undertaking,  or  attempt,  or 
attack,  to  be  conveyed  or  conducted  out  of  the  Uni- 
ted States,  into  another  country,  to  oppose,  or  put 
down  the  authority  of  any  foreign  prince,  or  state, 
with  whom  the  United  States  are  at  peace" — (words 
unknown  to  the  statute,)  is  so  palpable,  I  can  hard- 
ly suppose  the  opinion  to  have  been  honestly  en- 
tertained by  the  learned  gentleman.  In  this  sixth 
section  of  the  statute  of  1818,  there  is  no  ambiguity — 
and  no  extension  can  be  given  to  it  beyond  its  letter. 
It  is  a  judicial  principle,  that  all  penal  statutes  shall 
be  rigidly  construed.  It  is  provided  by  the  British 
laws,  which  are  still  applicable  to  our  country,  that 
*'  all  penal  statutes  must  be  strictly  construed."  Sec. 
I4th,  George  II.  Chap.  6;  cited  in  Black.  Com.  Vol. 
I.  p.  88. 

Then,  in  the  15th  paragraph  of  your  honor's  charge 
to  (he  jury,  it  is  said — ''if  so  be,  that  an  individual 
participates  in  the  getting  up  of  an  expedition,  it 
matters  not  whether  he  is  at  the  head  of  such  expedi- 
tion or  not.  If  he  is  connected  in  any  way  what- 
ever with  the  expedition — whether  as  an  olFicer  or 
private,  or  a  mere  co-operator — it  is  all  the  same — 
«&ch  is  equally  culpable." 

How  your  honor  could  have  for  a  moment  enter<» 


25 


-to  which  or- 
ii  agents  are 
the  means, 
persons  are 
der  this  law. 
d  the  absurd- 
tempting  to 
an  it  has  ex- 
)romoted,  or 
y  the  instru- 
■  attempt,  or 
of  the  Uni- 
•se,    or  put 
->  or  state, 
e"— (words 
can    hard- 
onestlj'  en- 
this   sixth 

nibfguity 

ti  its  letter, 
atutes  shall 
the  British 
"ntry,  that 
led."  Sec. 
Com.  Vol. 

>r's  chars;e 

individual 
edition,  it 
h  expedi- 
^a.V  what- 
olficer  or 
same — 

nt  enter* 


lained  such  an  extraordinary,  and  as  I  conceive,  er- 
ironeous  opinion,  as  a  lawyer,  I  am  unable  to  under- 
Itand.  The  opinion  is  evidently  against  the  letter, 
kis  well  as  the  intent  and  meaning  of  the  provisions  of 
the  statute  in  question — and  it  is  by  no  means  in 
keeping  with  the  principles  of  common  justice.  The 
words  of  the  statute  are  "  that  if  any  person,  &c.  shall 
begin,  or  set  on  foot,  or  provide,  or  prepare,  the 
means  for  any  military  expedition  or  enterprize,  &c." 
This  is  all  it  contains — and  if  the  legislators  who  en- 
hctedthe  law,  had  intended  to  embrace  all  who  ^^'par- 
ticipated, or  connected  themselves  in  any  way  whatever 
with  such  military  expedition — whether  as  an  officer 
or  private.,  or  a  mere  co-operator,^^  it  is  reasonable,  as 
I  think,  to  suppose  they  would  so  have  expressed  it 
in  the  letter  of  the  act  ;  and  as  they  have  not  done 
so — and  as  it  is  a  rule  of  law,  "strictly  to  construe  a 
penal  statute,"  it  is  as  reasonable  a  conclusion  that 
the  makers  of  the  law  did  not  intend  to  include 
all  such  persons  as  culpable — and  legal  so  to 
decide. 

As  it  is  remarked  in  the  10th  paragraph  of  your  hon- 
or's charge  to  the  jury — "  This  law  contemplates  an 
expedition  to  be  commenced  or  to  be  set  on  foot  with- 
in the  United  States,  and  to  operate  upon  and  a- 
gainst  some  power  with  which  we  are  at  peace." 
But,  as  it  is  expressed  in  the  letter  of  the  statute,  it 
must  be  a  military  expedition^  or  there  is  no  offence 
committed  against  this  law. 

In  all  military  operations  in  civilized  countries,  it 
has  been  usual  to  hold  none  others  than  the  comman- 
ders and  principal  leaders  responsible  for  the  general, 
acts  of  the  expedition  or  force.  The  soldiers  or  indi- 
viduals who  make  up  the  rank  and  file  of  ad  army,  or 
military  body,  in  almost  all  countries,  and  all  indtan- 

d2 


26 


e«9,  are  from  the  eimple  and  uneducated.  M^ny  of 
them  are  often  drawn  into  the  service,  and  enlist* 
cd,  without  a  perfect  knowledge  of  the  expedition  or 
eoterprize  in  which  they  are  to  serve — and  when 
once  embodied  they  are  held  by  the  cords  of  military 
discipline  ;  and  while  they  are  thus  compelled  to 
follow  the  orders,  and  obey  the  commands  of  their 
superiors,  they  are  in  general  kep'  ignorant  of  all 
the  intended  movements  of  the  expedition  in  which 
they  are  embarked.  Can  such  men,  I  would  ask,  be 
held  accountable,  by  an  enlightened  and  liberal  gov- 
ernment, for  the  general  acts  of  the  armed  force  to 
which  they  may  chance  to  belong  ]  Justice  would 
say  no  !  It  is  the  leaders — those  who  command,  and 
those  who  furnish  the  means,  (the  sinews  of  war,) 
who  can  be  properly  held  accountable — and  they  are 
these,  alone,  who  have  been  named  in  this  sixth  sec- 
tion of  the  statute  of  1818,  or  who  have  been  inten- 
ded to  be  included  in  the  provision  of  the  act,  by 
those  who  made  it.  This  is  a  principle  recognized 
not  ©nly  by  the  enlightened  and  polished  nations  of 
the  eitrth  ;  but  by  some  people  who  are  accepted  only 
as  half  civilized,  the  principle  has  been  regarded;  and 
the  only  violation  of  it  by  those  claiming  to  be  of  the 
enlightened  part  of  mankind,  of  a  recent  date,  is  the 
condemnation  to  chains  and  slavery,  by  the  British 
Government,  of  a  number  of  Canadian  Patriots, 
taken  by  their  forces,  during  the  late  revolutionary 
movements  in  the  Canadas,  who  were  of  but  the  rank 
of  private  soldiers.  This,  however,  was  the  act  of  a 
government  which  was  never  known  to  admit  right 
while  it  possessed  the  means  of  coercion  ;  or  to  ac- 
knowledge justice,  while  it  had  the  power  to  oppress  ; 
and  if  Qur  government  is  now  to  take  precedents  of 
injustice  and  cruelty  from  the  British,  then,  indeed, 


4 

«1 


r 
p\ 

a 

IT 


■i-^ 


-?*/ 


27 


ed.     M^ny  of 
:e,  and  enlist- 
expedition  or 
e — and  when 
ds  of  military 
compelled    to 
lands  of  their 
?norant  of  all 
ion  in  which 
'ould  ask,  be 
1  liberal  gov- 
med  force  to 
ustice  would 
wimand,  and 
3WS  of  war,) 
ind  they  are 
is  sixth  sec- 
been  inten- 
the  act,   by 
recognized 
d  nations  of 
cepted  only 
arded;  and 

0  be  of  the 
date,  is  the 
he   British 

1  Patriots, 
'olutionary 
ut  the  rank 
le  act  of  a 
dniit  right 
or  to  ac- 
>  oppress ; 
3edents  of 
1,  indeed, 


4id  Warren  die  for  nothing,  and  Washington  con* 
quer  in  vain. 

On  this  reasoning,  I  assume  it  to  be  the  intent  and 
jiieaning  of  this  sixth  section  of  the  statute  of  1818,  to 

f  REVENT  FOREIGN  BELLIGERENTS,  OR  THKIR  AGENTS, 
TROM  ORGANIZING  MIL'.TARY  FORCES  WITHIN  THE  BOR- 
DERS OF  THE  UNITED  STATES,  TO  BE  FROM  THENCE 
MARCHED    INTO    FOREIGN     STATES  AT  PEACE  WITH  THE 

UNITED  STATES — and  that  its  provisions  only  make 
<:ulpable,  those  who  are  the  military  commanders, 
and  the  officers  of  subsistence,  who  furnish  the 
ineans — and  who,  only,  could  begin,  or  set  on  foot 
Buch  expeditions  and  enterprizes  as  are  had  in  view 
by  this  law. 

In  this  examination  of  the  second  branch  of  the 
enquiry,  I  believe  I  shall  be  able  to  show,  that  by 
the  testimony  adduced  on  the  trial  of  the  said  Will- 
iam Lyon  Mackenzie,  it  was  not  established  that  any 
such  offence  had  been  committed,  (by  any  one,)  as 
this  sixth  section  of  the  act  of  Congress  of  1818,  was 
intended  to  punish. 

In  the  4th  paragraph  of  your  honor's  charge  to  the 
jury,  it  is  said — "if  there  be  any  citizen  among  us 
who  may  wish  to  embark  in  any  attempt  to  liberate 
other  countries,  we  do  not  prevent  him,  nor  does  the 
law.  Every  man  may  shoulder  his  musket,  alone,  ex- 
patriate himself,  and  go  into  the  service  of  any  body 
of  men,  or  any  nation  he  pleases.  It  is  his  right  if 
he  pleases  to  exercise  it.  Under  the  sixth  section  of 
the  neutrality  act,  nothing  of  this  kind  is  prevented." 

Now,  then,  as  your  honor  has  embraced  the  occa- 
sion to  say  that  such  are  the  rights  of  citizens,  I 
shall  take  it  for  granted  that  the  same  privilege  be- 
longs to  foreigners  who  may  chance  to  be  within  our 
borders— though  your  honor  would  seem  to  deny  such 


^Q 


V' 

li 


application  of  the  principle,  in  a  subsequent  part  of 
your  honor's  charge  to  the  jury.  Yet — that  there 
should  be  the  same  law  for  the  Jew  and  ihe  stranger, 
was  a  principle  contained  in  the  Mosaic  code — and  I 
have  always  understood  that  ours  embraced  aa 
much. 

To  us,  who  are  citizens,  your  honor  would 
seem  to  say  go — but  then,  like  the  Egyptian  Pharaoh, 
you  follow  us  with  a  host  for  our  destruction. 

The  first  matter  shown  by  proof,  is  this;  Joseph  B, 
Latlirop,  sworn  as  a  witness  on  the  part  of  the  prose- 
cution, is  reported  to  have  testified,  "  that  previous 
to  the  taking  possession  of  Navy  Island,  (of  which, 
however,  he  made  no  pretention  to  know,)  in  Dec. 
1837,  a  public  meeting  was  held  at  the  Theatre,  in 
the  city  of  Buffalo — that  Mackenzie  was  there  and 
addressed  the  meeting — told  the  sufferings  of  the 
people  of  Canada,  and  drew  a  parallel  between  their 
grievances,  and  those  of  our  forefathers — alluded  to 
the  succor  which  they  had  received  from  foreign 
countries,  and  asked  for  aid  from  our  citizens  for  the 
people  of  Canada.  That  I  was  present  at  the  meet- 
ing at  the  Theatre,  and  while  standing  on  the  stage 
near  Mackenzie,  expressed  a  readiness  to  proceed  to 
Canada,  and  invited  others  to  go  with  me.  That 
when  the  meeting  was  adjourned,  he  came  out  and 
found  the  street  in  front  of  the  Theatre  full  of  people — 
and  that  there  was  martial  music,  and  a  procession 
formed,  which  followed  it  through  the  streets  of 
Buffalo  ;  and  that  I  was  one  of  the  procession  ;" 
and  it  is  also  reported  that  one  William  C.  Hoyty 
' «"  ji  as  a  witness  on  the  part  of  the  prosecution, 
•  '^»ated  Lathrop  in  all  the  above  matters — and 
c  '  testified,  "  that  the  procession,  with  the  mu- 
<   '  tp  the  house  of  Dr.  Chaoin  '* 


•M 


a] 

#i 

ll 

yi 
^1 

P 

til 
c< 


w 


sequent  part  of 
et— that  there 
d  rhe  stranger, 
c  code— and  I 
embraced   as 

honor    would 

»tian  Pharaoh, 

ction. 

lis;  Josephs. 

of  the  prose- 
that  previous 
d,  (of  which, 
^^y)   in   Dec. 

Theatre,  in 
s  there   and 
rings  of  the 
etween  their 
;^alluded  to 
rom  foreign 
zens  for  the 
it  the  meet- 
1   the  stage 
)  proceed  to 

me.  That 
e  out  and 
of  people — 
procession 

streets  of 
•cession  ;'' 
w  C.  ffoyt, 
osecution, 
Iters — and 
h  the  mu- 


29 


*"'  Let  this  all  be  accepted  as  true,  and  what  does  it 
amount  to  in  support  of  the  charge  ?  That  American 
Ijitizens,  or  aliens  even,  may  not  follow  a  band  of  mu- 
$[c  through  the  streets  of  one  of  our  cities,  without 
fhereby  committing  an  offence  afjainst  our  laws,  I  am 
yet  to  learn.  The  procession  which  was  formed  in 
^he  streets  of  Buffalo  on  that  evening,  was  composed 
I3f  some  of  the  most  respectable  and  wealthy  citizens 
pf  our  country — and  they  never  dreamed  of  commit- 
ting an  unlawful  act.  Nor  did  we  suppose  we  had 
jcommitted  any  offence  at  the  public  meeting.  The 
question  had  been  put  to  the  judges  of  the  United 
States  Court,  in  New-York,  by  a  public  meeting, 
whether  it  v/ould  be  a  violation  of  the  neutrality  act 
to  furnish  supplies,  money  and  munitions  of  war,  to 
enable  the  people  of  Texas  to  carry  on  war  against 
JVIexico,  a  nation  with  which  we  were  at  peace.  The 
answer  was  given,  "  that  the  mere  meeting  together  of 
.individuals,  or  raising  of  money,  or  the  collection  of 
arms,  to  send  to  Texas,  was  no  violation  of  this  law, 
because  it  conttmplaies  the  jilting  out  of  an  expedition 
in  this  country^  and  sending  such  expedition  to  another 
country  ;  and  we  had  not  then  learned  there  was  to  be 
any  difference  in  the  construction  of  the  neutrality  law 
in  relation  to  Canada  from  that  of  Texas — and  there- 
fore, we  could  not  deem  we  had  done  any  thing  wrong 
at  the  Theatre. 

It  is,  also,  said  in  the  17th  paragraph  of  your  hon- 
or's charge  to  the  jury,  "  that  there  was  nothing 
which  Mackenzie  did  at  the  meeting  wrong — that  if 
he  had  stopped  with  what  he  said  in  ihe  meeting, 
nothing  would  be  found  against  him."  Then,  if  your 
honor  will  allow  this  opinion  to  apply  to  all  who  were 
present  at  the  meeting,  no  offence  was  committed 
there. 


^ 


^ 


30 


'\ 


-l. 


I'he  next  matter  exhibited  is  by  the  testimony  of 
Lester  Brace  and  James  L.  Barton,  who  were  sever- 
ally sworn  as  witnesses  on  the  part  of  the  prosecution. 
Brace  is  reported  to  have  testified,  "  that  on  the  20th 
of  December,  1S37,  (as  I  find  it  stated  in  the  report  of 
the  testimony ;  but  it  is  said  to   have  been   on   the 
same  night  of  the  meeting,  as  the  testimony  has  been 
rehearsed  by  the  United  States  Attorney,)  he  went  in 
pursuit  of  a  quantity   of  arms  which  had  been  taken 
from  the  Court-house   in   Buffalo — that  he  proceeded 
to  Black  Rock,  and  there  found  two  or  three  wagons 
loaded  with  muskets — and  persons   taking  them  out 
and  distributing  them  to  60   or  100  men,  who  were 
there,  and  who   shouldered   them.     That   the   men 
then   marched   down   to   near  the  ferry,  where  they 
placed  a  guard  across  the  street,  and  removed  all  the 
muskets  into  a  vacant  house.  That  at  about  2  o'clock  in 
the  morning  he   saw    me   at  Black  Rock,  handing 
out  arms — and  that  I  appeared  to  be  in  command." 

[Brace,  in  stating  that  he  saw  me  at  the  time  men- 
tioned, at  Black  Rock,  handing  out  arms,  labored 
under  a  mistake  !  It  was  at  the  Eagle  Tavern  in  Buf- 
falo that  he  saw  me — and  not  at  Black  Rock.] 

Brace  is  reported  further  to  have  testified,  "that 
at  9  o'clock  in  the  morning  he  returned  to  Black 
Rock — where  there  were  not  so  many  men  as  on  the 
night  before.  That  he  saw  Mackenzie  there — 
that  he  then  asked  for  the  arms,  saying  they  were 
taken  from  the  Court  House.  That  Mackenzie  said 
he  hoped  he  would  not  interfere  with  the  muskets, 
or  take  them  away — that^they  were  the  very  property 
they  were  trying  to  get,  and  what  they  wanted — and 
if  they  had  had  them  at  Toronto,  they  would  have 
succeeded.     That  Mackenzie  said,  they  wanted  the 


arl 

in 

EJ 
Bi 

col 

thl 

bJ 

wi 
ai 


.1 


81 


testimony  of 
were  sever- 
prosecution. 
:  on  the  20th 
the  report  of 
)een   on   the 
)ny  has  been 
)  he  went  in 
i  been  taken 
»e  proceeded 
iree  wagons 
ng  them  out 
,  who  were 
»t   the  men 
where  they 
oved  all  the 
2  o'clock  in 
k,  handing 
3mmand." 
*  time  men- 
w,    labored 
em  in  Buf- 
;k.] 

ied,  <Mhat 
d  to  Black 
n  as  on  the 
there — 
they  were 
enzie  said 
muskets, 
y  property 
ited— and 
5uld  have 
anted  the 


arms  in  Canada — but  did  not  say  for  what."    This  is, 
in  the  18th  paragraph  of  your  honor's  charge   to  the 
jury,  declared  to  have   been    "  a  military  array — a 
preparation  for  a  military  movement  of  some  sort." 
But,  certainly,  the  evidence  does  not  warrant  any  such 
conclusion — nor    is   there  shown   to  have  been  any 
thing  like  a  military  expedition  or  enterprize.     True, 
Brace  is   reported   to   have   testified  "  that   several 
wagon  loads  of  arms  were  taken  out  at  Black  Rock 
and  distributed  to  some  60    or    100   men,   (a   rough 
guess   at   numbers,  when  a  man's  liberty  was  to  be 
decided  upon  ;  but,  then,  it   ivas  night  and  he  cmdd 
not  see  well!)  who  shouldered  them  and  carried  them 
down  to  near   the  ferry — where  the  arms  were  then 
placed  in  a  vacant  house — and  somebody,  (whom  ho 
has  taken  care  not   to  name,)  posted  sentinels  across 
the  street ;  and  that  one  of  which  sentinels  prevented 
him  from   going    into   the   place  where  the  arms  had 
been  deposited."     But,  if  this  be  evidence  of  military 
array — it  is  no  evidence    of  a   military  expedition  or 
enterprize.     At  Black  Rock  was  the  common  ferry, 
as  the  witness   testified,    and    the  arms  were   taken 
near   it   for   the   purpose  of  being  carried  out  of  the 
country  ;  and  if  there  had  been  60  or    100    persons 
hold  of  them,  the  number  was  no  more  than  was  ne- 
cessary "  to  shoulder  several  wagon  loads  of  arms" — 
which  were   lawful   matters   of  commerce.     Again, 
Brace's  estimate  of  the  number  of  iVien  whom  he  said 
shouldered  the   arms   and  carried  them  down  to  the 
ferry,   is   worthy   of  no   consideration — as  he  says 
"  that  when  he  went  down  to  Black  Rock,  at  9  o'-' 
clock  in  the  morning,  there  were  not  &o  many  men  as 
on  the  night  before^^''  and  it  was  then  day  light,  and  the 
persons  could   be   distinctly  seen   and  counted ;  and 
though  his  fright  may  have  induced  him  to  believe, 


S2 


like  the  hero  of  Gads  Hill,  "  that  there  were  fifty  and 
more  men" — by  the  light  of  day  he  could  not  have 
counted  twenty  persons. 

As  to  the  sentinels,  they  may  have  been  some  in- 
toxicated persons,  who  had  got  hold  of  a  few  mus- 
kets, and  for  mere  sport  or  mischief,  were  making^! 
an  effort  to  play  the  soldier;  and  no  doubt  they  were 
such,  as  Brace  does  not  pretend  to  know  who  the 
persons  were,  or  who  posted  them  as  sentinels.  And 
if  they  had  really  belonged  to  the  party  in  possession 
of  the  arms,  it  should  be  recollected  Brace  came 
there  to  seize  the  muskets  as  stolen  property — and  it 
was  very  natural,  and  not  improper,  for  those  who  had 
come  honestly  in  possession  of  the  property,  to  guard 
it,  and  to  refuse  to  give  it  up  to  unsupported  claim- 
ants. 

Then,  suppose  the  inference  drawn  by  your  honor 
be  correct — '^  that  Mackenzie  and  myself  were  at 
Black  Rock,  in  possession,  (with  others,)  of  several 
hundred  stands  of  arms — with  the  intent  and  object  of 
taking  them  into  Upper  Canada,  to  be  used  by  the 
Patriots,"  (and  this  is  the  most  that  the  facts  shown 
on  the  trial  established — or  with  Mackenzie's  state- 
ment, could  be  strained  to  imply,)  there  is  no  founda- 
tion of  an  offence  against  this  provision  of  the  act. 

The  United  States  Attorney,  in  the  4th  paragraph 
of  his  canvass  of  the  testimony,  has  seemed  to  regard 
the  fact,  as  alleged,  that  Mackenzie  said  "these  guns 
are  wanted  in  Canada,  and  that  great  good  could  be 
accomplished  with  them  there" — as  a  corner  stone  to 
sustain  the  indictment.  But  let  us  go  still  further, 
and  suppose  Mackenzie  to  have  said — "  here  we  have 
several  hundred  stands  of  muskets,  with  a  large  quan- 
tity of  the  munitions  of  war,  which  we  have  procured 
for  the  purpose  of  having  them  conveyed  into  Cana- 


33 


^ere  fifty  and 
uld  not  have 

pen  some  in- 
a  few  mus- 
rvere  making' 
bt  they  were 
now  who  the 
tinels.  And 
n  possession 
Brace  came 
erty — and  it 
ose  who  had 
ty,  to  guard 
orted  claim- 

your  honor 
elf  were  at  • 
I  of  several 
nd  object  of 
used  by  the 
facts  shown 
zie's   state- 
J  no  founda- 
f  the  act. 
^  paragraph 
;d  to  regard 
'these  guns 
od  could  be 
ler  stone  to 
till  further, 
re  we  have 
large  quan- 
'e  procured 
into  Cana- 


da,  and  we  intend  to  carry  them  across  the  ferry  im- 
mediately, to  be  used  by  the  Patriots  to  drive  the 
British  from  the  American  soil" — then  there  had 
been  no  step  taken  towards  the  commission  of  an  of- 
fence under  this  sixth  section  of  the  statute  of 
1818. 

Mackenzie,  or  I,  or  any  other  individual,  had,  by 
the  laws,  a  conceded  right  to  purchase,  or  otherwise 
lawfully  to  procure,  any  quantity  of  arms  or  muni- 
tions of  war,  and  with  the  assistance  of  such  persons 
as  were  necessary  for  the  purpose,  to  transmit  them 
into  Canada  for  the  Patriots  ;  or  take  them  to  the 
belligerents  of  any  other  country  which  might  be 
chosen.  Such  was  the  decision  of  the  United  States 
Court,  in  the  case  of  the  Santissima  Trinidad,  reported 
in  the  7th  Vol.  of  Ifliealon^s  Untied  States  Reports  : 
And  the  same  principle  is  maintained  by  Chancellor 
Kent,  in  his  Commentaries,  Vol.  I.  p.  142  ;  and  the 
sixth  section  of  the  statute  of  1818,  has  no  provision 
contrariwise  to  this  principle. 

In  the  18th  paragraph  of  your  honor's  charge  to 
the  jury,  as  youp  honor  rehearses  the  testimony  of 
Brace,  it  was  sworn  by  him  "  that  there  were  sentinels 
stationed,  who  threatened  violence  to  any  person  who 
attempted  to  interefere  with  their  military  arrange- 
ments'*'^— but  this  is  not  according  to  the  report  of  the 
testimony  ;  as  I  find  neither  of  the  witnesses  to  have 
designated  the  affairs  at  Black  Rock,  "  military  ar- 
rangements.'*'* 

The  testimony  of  Barton,  as  reported,  covers  but 
little  ground.  He  agrees  with  Brace  instating,  "  that 
they,  (Brace  and  himself,)  went  to  Black  Rock  to  re- 
cover the  arms  which  were  stolen — that  they  went 
into  the  room  where  the  arms  were — and  that  I  and 
Mackenzie   were  present — that   Mackenzie  was  the 

E 


r'«:;-j  »  Ti  v — rr 


34 


> 


I 


^l!^ 


only  one  who  objected  to  the  arms  being  taken^— but* 
notwithstanding)  that  they  did  take  the  arms  and  car- 
ry them  back  to  Buffalo."  Barton,  (as  it  appears  by 
the  report  of  his  testimony — and  as  it  is  rehearsed  by 
the  United  States  Attorney,)  made  no  mention  of 
having  seen  any  sentinels  at  Black  Rock;  and  Brace 
did  not  swear  that  there  were  any  sentinels  when 
he  went  to  Black  Rock  in  the  morning  ;  and  had  it 
been  light  at  2  o^clock,it  is  in  no  manner  probable  he 
would  have  seen  any  thing  that  looked  like  sentinels 
at  all. 

That  there  were  no  sentinels  at  9  o'clock  in  the 
morning,  when  Brace,  Barton  and  Mackenzie  were 
at  Black  Rock,  is  not  left  a  mere  matter  of  presump- 
tion. It  is,  as  I  think,  clearly  established.  As  your 
honor  has  rehearsed  the  testimony  of  Brace  in  the  19th 
paragraph  of  your  honors  charge  to  the  jury — "  Mac- 
kenzie was  the  only  one  who  made  any  objection  to 
the  taking  away  of  the  arms."  Then,  it  does  not  ap- 
pear that  either  Mackenzie,  or  the  sentinels,  (if  any 
such  were  ever  posted,)  were  very  potent  in  their 
resistance  ;  as  the  testimony  of  Brace  and  Barton, 
shows  that  they  did,  in  defiance  of  all  objections, 
take  and  carry  back  to  Buffalo  all  the  arms  they 
found;'*'*  and  according  to  the  rc^port  of  Brace's  testi- 
mony, "  he  had  not  much  trouble  in  the  matter." 

What,  now,  I  would  ask,  Joes  this  exhibition  of 
facts  establish  !"  That  there  was  a  "military  array,"  as 
your  honor  has  said,  at  Black  Rock.  Certainly  not. 
It  could  not  be  a  "  military  array"  which  would  al- 
low two  individuals  unopposed,  to  take  and  carry  a- 
way  all  their  arms.  It  is  a  violation  of  common 
sense,  to  suppose  the  affair  at  Black  Rock,  described 
by  the  witnesses,  to  have  been  an  array  of  any  kind— 


di( 
sh 


35 


taken— butt 

tns  and  car* 

appears  by 

ihearsed  by 

mention  of 

and  Brace 

inels  when 

and  had  it 

)robabIe  he 

^e  sentinels 

3ck  in  the 
)nzie  were 
fpresump- 
As  your 
in  the  19th 
k—"  Mac- 
•jection  to 
368  not  ap- 
is, (if  any 
t  in  their 
d   Barton, 
objections, 
arms  ihny 
ice's  testi- 
tter." 
libitioQ  of 
array,"  as 
iinly  not. 
would  al- 
3  carry  a- 
common 
described 
y  kind — 


and  if  there  had  been  any  thing  like  a  military  expe-* 
dition  or  enterprize  about  the  matter — the  testimony 
shows  the  ending,  and  not  the  beginning  of  it. 

The  testimony  of  Brace,  alleging  that  he  saw  me  at 
Black  Rock,  and  of  having  seen  sentinels  posted  there, 
is  in  discredit.  It  is  his  bare  assertion,  unsupported 
by  corroborating  circumstances.  The  time  was  2  o'- 
clock in  the  morning — a  time  when  darkness  pervad- 
^ — and  how  was  he  to  discern,  through  the  curtain 
of  night,  who  was  there,  or  what  was  going  on  ?  He 
says  "  he  saw  me  there — and  I  appeared  to  be  in 
command."  Yet,  of  me,  the  commander,  as  he 
supposed,  and  the  only  person  there  whom  he  knew, 
he  makes  no  demand  for  the  arms  which  he  alleges  to 
have  came  all  the  way  from  Buffalo  to  look  after  ! 

I  will  not  pretend  to  deny  that  Brace  was  at  Black 
Rock  at  the  time  he  has  testified — or  contradict  his 
assertion  "  that  he  saw  wagons  there,  loaded  with 
arms  and  munitions  of  war."  But,  if  so,  1  must  con- 
clude that  he,  in  passing  near  the  wagons  in  the 
street,  ran  against  some  individual  engaged  in  unload- 
ing the  arms,  who  bade  him  get  out  of  the  way,  per- 
haps with  a  threat — and  that  his  fears  then  constraed 
the  man  into  a  sentinel,  and  magnified  some  six  or  a 
dozen  persons  into  sixty  or  "  a  hundred  men  in  arms." 
And  this  is  all  that  Brace's  story  maintains  with  any 
degree  of  probability. 

In  the  18th  paragraph  of  your  honor's  charge  to  the 
jury,  it  is  said,  "  there  was  no  law  which  authorized 
this  array,  or  those  threats" — in  allusion  to  the  story 
of  Brace  about  the  sentinels.  But,  then,  in  this,  I 
believe  your  honor  is  altogether  mistaken  ;  as  it  is 
provided  by  Sec.  2.  Title  V.  Chap.  X.  Part  I.  of  the 
Revised  Statutes  of  the  State  of  New-York,  as  fol- 
lows : 


'  I 


36 


m 


"  §  2.  It  shall  be  the  duties  of  uniform  companiei 
and  troops  to  rendezvous  by  companies  and  troops  with- 
in their  respective  beats,  in  addition  to  their  general 
rendezvous,  [first  Monday  of  Sept. — and  one  day  be- 
tween the  first  of  Sept.  and  the  16th  of  November,] 
one  day  in  each  year,  at  such  time  and  place 
as  their  respective  commandants  may  direct — and  as 
much  oftener  as  a  majority  of  all  the  members  of  the 
campany  or  troop  may  direct ;"  And  if  there  was  not 
this  law  to  authorize  a  military  array,  if  there  had 
been  one,  your  honor  must  know,  there  was  no  law 
prohibiting  it — and  that  is  one  and  the  same  thing 
as  a  law  to  authorize  it. 

In  this  country,  I  believe,  the  right  of  wearing 
arms  is  secured  to  every  one  by  the  constitution  and 
laws.  Nor  do  I  understand,  if  a  stranger  meet  me  in 
the  street  and  attempt  to  deprive  me  of  my  property, 
or  that  entrusted  to  me  by  another,  without  legal 
process,  I  commit  any  offence  against  our  lawsy 
should  I  threaten  to  shoot  him  if  he  did  not  desist. 

In  the  19th  paragraph  of  your  honor's  charge  to 
thejury,  itis  said,  "whether  he,  (Mackenzie)  wa» 
one  of  those  who  started  the  expedition,  or  a  leader 
in  the  expedition,  does  not  appear,  nor  is  it  material; 
for  there  appears  to  have  been  all  the  regulations  of 
officers,  &c.  which  is  usual  in  military  arrays."  As 
to  this  point  of  your  honor's. c/ia?*g-e,  which  relates  to 
the  construction  of  the  provisions  of  the  statute,  I 
I  've  already  shown  wherein  I  deem  your  honor  to 
hive  been  in  error — and  the  other  part  of  this  your  hon- 
or's charge,  recited  above,  I  do  not  find  supported  by 
any  of  the  published  reports  of  the  testimony,  nor  by 
the  testimony  as  rehearsed  to  the  jury,  by  the  United 
States  Attorney.  Brace  is  reported  to  have  testified 
"  that  he  saw  me  at  Black  Rock,  where  I  seemed  to 


'^   '  w 


z: 


m  companiei 

I  troops  with- 

their  general 

one  day  be- 

November,] 

5  and   place 

rect — and  as 

mbers  of  the 

lere  was  not 

if  there  had 

was  no  law 

same  thing 

of  wearing 
titution  and 
meet  me  in 
ly  property, 
ithout  legal 

our  lawsy 
t  desists 

charge  ic 
enzie)  was 
or  a  leader 
t  material ; 
ulations  of 
ays.'»     As 

relates  to 
statute,  I 
ir  honor  to 
J  your  hon- 
pported  by 
»y,  nor  by 
he  United 
e  testified 
seemed  to 


to  be  in  command ;  and  Van  Rensselaer,  who  was  call- 
ed general ;"  and  this  was  all  that  was  testified  to  in 
relation  to  there  having  been  any  military  officers  at 
Black  Kock.  Then,  two  officers,  and  those  comman- 
ders, by  no  means  constitute  "all  the  regulations  of 
officers,  which  Is  usual  in  military  arrays  ;"  and  I 
conce.ve  your  honor  was  greatly  in  wrong  by  so 
charging  the  jury. 

In  order  to  give  a  military  character  to  any  body 
or  collection  of  men,  much  more  must  necessarily  be 
done,  than  what  was  shown  to  have  existed  at 
Black  Rock.  The  orq;anization  of  a''  military  array ,"^ 
requires  the  appointment  of  officers,  not  only,  but  the 
engagement  of  soldiers  ;  and  this  could  not  be  shown 
sufficiently,  for  a  conviction  under  this  sixth  section  of 
of  the  statute  of  1818,  by  proof  of  the  mere  presence 
of  a  number  of  unknown  individuals. 

These  "  men  and  arms'*  were  sworn  by  Brace  to 
have  been  near  the  ferry,  the  common  highway  from 
the  United  States  to  Canada  ;  and  your  honor  has  con- 
ceded, "that  an  individual  may  freely  and  lawfully 
shoulder  his  musket  and  go  into  the  service  of  any 
body  of  men,  or  any  nation  he  pleases."  Then,  I 
would  ask,  if  it  be  not  extremely  erroneous  to 
decide,  that  when  a  few  individuals,  moved  by  a 
imilar  impulse,  but  coming  from  different  directions 
of  our  country,  with  an  intention,  in  common,  of  en- 
gaging in  an  attempt  to  liberate  another  country, 
chance  to  meet  or  come  together  at  the  common 
place  of  embarkation,  without  the  proof  of  any  under- 
taking to  serve  as  officers  or  soldiers,  they  have  there- 
by committed  an  offence  against  our  neutrality  laws ; 
and  that  the  saoue  '*  arsons  would  not  have  been  cul- 
pable if  they  bad  kept  out  of  sight  of  each  othar !  It  is 
f  e,  to  my  understanding. 


II 

lil.'i' 


': 


mb 


98 

|, 

If  your  honor  pleases,  I  will  suppose — a  vessel  is  put 
up  in  this   port  for  Matagorda,  in  Mexico  ;   I  have 
purchased  a  quantity  of  arms  and  munitions  of  war 
which  I  wish  to  have  conveyed  to  Mexico,  to  he  used 
by  the  Federalists  in  carrying  on  their  revolution,  and 
1  ship  them  as  freight  on   board  this  vessel.     In  this 
there  is  nothing  unlawful.     Then,  whilst  I  am  em- 
barking my  goods,  other  individuals  of  whom  I  may, 
or   may   not,  have   had    any    previous    knowledge, 
learning  of  the  destination  of  the  vessel,  and  wishing 
to  embark  in  the  service  of  the  Federalists  of  Mexico, 
come  one  after  another,  to   the  number  of  sixty,  or  as 
many  as  the  vessel    can   accommodate,   and  engage 
their  passage  ;  in  this  there  would  be  nothing  unlaw- 
ful ;  and  should  any  of  those  who  are  to  embark  with 
my  goods,  volunteer  to  assist   me  in  putting  them  on 
board — and   while   they   were    rendering    me    such 
assistance,   an    individual,   without   making   himself 
known  as  an  officer,  should  come  up  and  demand  pos-  ' 
session  of  my  goods   as  stolen  property,  and  then  be 
told  by  the  person  rendering  me  the  service  of  putting 
my  goods  on  board,  to   go  away  or  he  would  shoot 
him  with  one  of  my  muskets   he  may  chance  to  have 
in   his  hand,  I  would,    then,    put   the   question   to 
your  honor,  if  the  existence  of  such  facts  would  make 
me  culpable  under  this  sixth  section  of  the  statute  of 
1818  ?  My  opinion,  is,  that  it  would  not — and  I  trust 
your  honor  holds  the  same.     Yet,  what  was  shown 
on  the  trial  of  Mackenzie,  (giving  the  fullest  force  to 
every  word  of  the  testimony,  and    accepting   every 
word   of   it  to  be  true,)  makes  not  so  much    of  a 
case  as^'this  I  have  stated';  and  I  contend  that  it  was 
in  DO  manner  shown  on  the  trial  of  Mack ejizie' that 
tbtrtwa*  organized  at  Black  Kock,  at  the  time  mtD- 


39 


•  vessel  is  put 
CO ;   I  have 
tions  of  war 
o,  to  be  used 
t'oiutioD,  and 
sel.     In  this 
it  I  am  em- 
/hom  I  may, 
knowledge, 
and  wishing 
s  of  Mexico, 
sixty,  or  as 
and  engage 
hing  unlaw- 
^mbark  with 
ng  them  on 
;    rne    such 
ing   himself 
Jemand  pos-  * 
and  then  be 
-e  of  putting 
vould  shoot 
nee  to  have 
question    to 
vould  make 
e  statute  of 
-and  I  trust 
was  shown 
est  force  to 
ting   every 
ouch    of  a 
that  it  WIS 
(ienzicthBt 
timemtn* 


tioned  by  the  witnesses  Brace  and  Barton,  a  military 
expedition  or  enterprize,  as  alleged. 

But  could  it  for  a  moment  be  supposed  that  any 
thing  shown  on  the  trial  of  Mackenzie  established 
the  charge,  or  the  fact  that  any  offence  had  been  com- 
mitted, by  any  one,  against  the  provision  of  this  sixth 
section  of  the  statute  of  181S,  I  would  enquire,  what 
was  there  to  tix  the  commission  of  such  ofience  upon 
Mackenzie  ? 

As  it  will  have  been  perceived,  I  have  contended 
that  your  honor  was  in  error  in  supposing  that  the  law 
could  be  properly  so  construed  as  to  hold  any  one  but 
the  commanders,  or  principal  leaders  of  the  expedi- 
tion or  enterprize,  as  culpable;  yet,  as  in  these  pro- 
ceedings under  consideration,  the  distinction  does  not 
necessarily  arise  ;  therefore,  in  this  examination  of 
the  third  and  last  branch  of  the  enquiry,  I  shall  con- 
sider the  proceedings,  without  taking  the  different 
ground  from  that  which  your  honor  has  assumed.    ~ 

That  the  evidence  adduced  on  the  trial  of  Macken- 
zie, to  establish  the  fact  as  charged  in  the  12th  and 
13th  counts  of  the  indictment,  (and  there  are  none 
others  of  the  counts  to  which  the  testimony  would  ap- 
ply, as  they  have  not  the  proper  stile  of  the  British 
Government,  which  is  material,)  ''  that  the  Province 
of  Upper  Canada  was  a  colony  belonging  to  the  United 
Kingdom  of  Great  Britain  and  Ireland  ;  and  that  with 
the  said  United  Kingdom  of  Great  Britain  and  Ire- 
land, the  United  States  were  at  peace,"  was  sufficient, 
there  can  be  no  question.  The  production  of  the 
treaty  of  1S15,  was  the  best  evidence  of  the  fact  that 
could  be  given.  But,  while  1  admit  that  so  much  of 
the  case  was  properly  made  out  against  the  accused, 
I  shall  contend  that  all  the  material  parts  of  the  sev- 


ill 


40 


I  ' 


eral  averments  contained  in  the  indictment,  remained 
wholly  unsupported  by  any  legal  evidence. 

The  first  that  was  attempted  to  be  proved  against 
Mackenzie,  was  his  speech  at  the  Theatre  in  Buffalo, 
on  the  12th  of  December,  1837  ;  and  as  to  this,  your 
honor  has  said — *'  there  was  nothing  which  he  did  in 
the  meeting  wrong,  &c."  Your  honor  then  proceeds 
in  the  same  paragraph — '*  but  after  the  meeting,  we 
find  Mackenzie  joining  himself  with  Sutherland,  who 
asked  for  volunteers,  and  begged  men  to  join  him,  in 
presence  and  near  by  the  defendant.  Sutherland  vol- 
unteered to  carry  cut  the  views  of  Mackenzie." 

I  must  now  stop  to  enquire,  what  were  the 
vieivs  which  it  was  alleged,  by  your  honor,  I  had  vol- 
unteered to  carry  out  ?  Mackenzie  had  expressed  no 
views  of  attempting  to  fit  out  a  military  expedition  or 
enterprize  in  the  United  States — nor  of  committing 
any  oflence  against  the  laws  of  our  country.  By  no 
means — nor  was  it  testified,  that  he  did  so.  The 
broadest  scope  which  could  be  given  to  the  views  al- 
ledged  to  have  been  expressed  by  Maclienzie,  on  that 
evening,  I  find  in  the  language  of  the  United  States 
Attorney,  in  rehearsing  the  testimony  of  Lathrop,  to 
the  jury,  which  is  contained  in  the  4th  paragraph  of 
his  canvass  of  the  testimony,  it  is  thus  said — '*  on  the 
night  of  the  12th  of  December,  1S37,  there  was  a 
very  large  assemblage  of  people  at  the  Theatre,  in  the 
city  of  Bufftilo— that  Mackenzie  was  present  and 
made  a  speech,  at  the  close  of  which,  he  called  for 
volunteers  and  contributions  of  money,  arms,  and  mu- 
nitions of  war,  to  aid  in  the  struggle  to  revolutionize 
the  government  of  Upper  Canada."  This  is  what  the 
United  States  Attorney  had  made  Mackenzie  say, 
with  the  help  of  the  witnesses,  Lathrop  and  Hoyt ; 


I 


Sf 


41 


remained 

d  against 

1  Buffalo, 

his,  your 

he  did  in 

proceeds 

eling,  we 

and,  who 

n  him,  in 

riand  vol- 

ie." 

were  the 
had  vol- 
)ressed  no 
edition  or 
)mmitting 
^     By  no 
so.     The 
views   al- 
?,  on  that 
id   States 
Uhrop,  to 
agraph  of 
-"  on  the 
e   was  a 
re,  in  the 
sent  and 
:alled  for 
and  mu- 
lutionize 
^hat  the 
zie  say, 
I  Hoyt; 


and  if  he  had  said  as  much,  and  I  had  volunteered  t» 
carry  out  such  views,  I  might  have  proceeded  to  do 
so  to  the  fullest  extent,  independently  of  myself,  or  in 
conjunction  with  Mackenzie,  without  committing  any 
infraction  of  this  sixth  section  of  the  statute  of  181S, 
or  any  other  law  of  the  United  States,  if  the  previous 
decisions  of  the  Supreme  Court  of  the  United  States, 
are  now  to  be  regarded.  I  cite  IVIieaton^s  United 
States  Reports,  Vol.  VII.  p.  253. 

Your  honor  then  continues  to  say  in  the  same  par- 
agraph, "  that  Sutherland  goes  out.  There  is  music 
at  the  door,  and  a  party  follows  that  music  with  Suth- 
erland ;"  and  your  honor  then  tells  the  jury — "  it  is, 
therefore,  for  them  to  say,  whether  the  defendant, 
(Mackenzie,)  did  or  did  not,  that  night,  accompany 
Sutherland  ;  although  there  appears  nothing  to  show 
that  the  defendant,  (Mackenzie,)  ivas  with  Iiim  until 
the  nnxt  day  at  Black  Rock.^^ 

With  due  deference  to  your  honor,  I  contend  that 
this  was  error ;  as  nothing  can  be  properly  inferred 
against  the  accused,  which  does  not  necessarily  fol- 
low such  unlawful  acts  as  have  already  been  substan- 
tiated by  proofs— and  as  nothing  unlawful  had  been 
proved  against  Mackenzie,  of  his  acts  at  the  Theatre, 
in  Buffalo,  it  was  not,  as  your  honor  charged,  within 
the  province  of  the  jury  "  to  decide  whether  he  did 
or  did  not  accompany  me" — even  if  there  had  been 
any  thing  unlawful  in  that  act. 

In  this,  as  well  as  in  many  other  points,  your  honor 
seems  to  have  done  violence  to  the  rule  of  law,  which 
declares  "  that  all  those  facts  necessary  to  have  ex- 
isted in  order  to  constitute  an  offence,  must  be  set  out 
in  the  indictment — and  must  be  proved."  In  I.  Stark, 
JEvidtnccy  p.  444,  it  is  said,  "  when  there  is  a  failuro 

-    p2  '  ••    ' 


mm 


4S 


■\i 


U  :'4 


i 

■Vr 
#■■• 

I 

s 


M 


;)^i 


R^i- 


'-IF 


of  evidenre  to  establish  any  one  essential  averment, 
the  court  directs  an  acquittal  in  a  criminal  cause — or 
directs  the  plaintiff' to  be  nonsuited  in  a  civil  case.'* 
Same  authority — p.  371,  it  is  also  declared,  "that 
every  material  and  essential  allegation,  and  every  cir- 
cumstance descriptive  of  its  identity,  must  be  proven 
[not  presumed]  as  averred."  Had  this  principle  been 
recognized  on  the  trial  of  Mackenzie,  I  must  sup- 
pose be  would   have  been  acquitted. 

When,  as  it  was  testified  by  Brace,  sentinels  were 
posted  at  Black  JRock — AJackenzie  ttcus  not  there. 
The  whole  ai;^  ^7  connection  Mackenzie  is  shown 
to  have  had  jc  affair  at  Black  Rock  is  this. 

While  a  quantity  of  arms  were  at  that  place,  which 
Brace  and  B^>  if  n  had  claimed  as  stolen  property — . 
he  came  there  ana  ohjtc^ed  to  the  arms  being  tak- 
en away — and  said,  "  they  wanted  them  in  Canada— 
and  that  as  soon  as  the  committee  in  Buffalo  could 
be  consulted,  the  arms  would  be  paid  for,  or  secu- 
rity given  for  them." 

What  brought  Brace  and  Barton  to  Black  Rock? 
The  answer  is — to  get  the  arms  which  were  there— 
and  which  were  alleged  to  have  been  surreptitiously 
taken  from  the  Court  House.  Then  Mackenzie  in- 
terferes to  produce  an  arrangement,  and  a  settle- 
mejot"- as  he  says  they  are  wanted  in  Canada. 
That  arms  were  wanted  in  Canada  he  knew — and 
if  he  had  but  surmised  these  arms  in  question  were 
about  to  he  carried  into  that  country,  for  the  use  of 
the  PatTiots--it  was  both  natural  and  proper  for  him 
to  have  interfered  to  prevent  the  object  being  frustrat- 
ed ;  and  if  there  had  been  a  military  expedition  or 
enterprize  on  foot,  he  might  hnwe  done  all  that  if 
Alleged  against  him,  and  estabJisbed  tbeiet^  no  cv* 


att 
thf 
pal 

wi 


fr 


H 


"^ 


^!IV 


43 


averment, 
cause — or 
vil  case." 
ed,  « that 
very  cir- 
36  proven 
ciple  been 
nust  sup- 

nels  were 
noi  there. 

is  shown 
k  is  this, 
ce,  which 
•operty— 
eing  talc- 
panada—- 
lalo  could 

or  secu- 

k  Rock? 
5  there— 
Jtitiously 
enzie  in- 
a  settle- 
Canada. 
5w — and 
on  were 
J  use  of 
for  him 
frusirat- 
lition  or 
that  if 
no  ev- 


idence of  his  connection  with  it.  He  must,  in 
course,  have  wished  success  to  any  undertaking  to 
aid  his  countrymen  to  free  themselves  from  British 
thraidoin---and  may  not  he,  as  well  as  an  ordinary 
attorney,  interfere  to  settle  a  dispute  in  relation  to 
the  title  of  property,  without  making  himself  cul- 
pable in  matters  with  which  he  is  not  other- 
wise connected?  Such  is  the  opinion  I  hold— and  I 
believe  it  to  be  correct. 

in  the  18th  paragraph  of  your  honor's  charge  to  the 
jury,  your  honor  says,  *'  it  has  been  shown  that 
Mackenzie  made  a  speech  to  the  people,  which  was 
calculated  to  excite  them  to  resist  any  attempt  which 
might  be  made  to  lake  away  the  arms,  held  by  those 
^as  your  honor  words  it,)  in  military  array,"  and 
Irom  this  draws  an  inference,  that  Mackenzie  was 
Connected  with  the  matters  at  Black  Rock.  In 
this  your  honor,  very  strangely  overlooks  the  fact 
that  is  shown,  that  whatever  may  have  been  the  ob- 
ject of  Mackenzie's  speech,  it  had  no  influence  to 
to  produce  any  such  excitement — and  that  the  arms 
were  nevertheless  taken,  without  resistance,  and  car- 
ried away ;  and  that  it  is  not  in  accordance  with  the 
principle  of  our  laws,  that  any  man  should  be  con- 
demned for  his  bare  intentions. 

I  come  now  to  examine  the  testimony  in  relation  to 
the  occupation  cf  Navy  Island — and  I  think  I  might 
best  begin  with  the  consideration  of  the  22d  paragraph 
of  your  honor's  i;/irtr;rre  to  the  jury,  which,  with  due 
deference  to  your  honor,  and  with  a  disposition  to  be 
altogether  respectful,  I  must  say,  is  one  of  the  most 
extraordinary  advancements  I  have  ever  heard  of  in 
in  a  court  of  law.  Your  honor  savs— **  there  is  no 
•vidence  to  show  that  Navy  Island  was  occupied  by 


■M 


-    !f 


44 


m 


f 


,  f. 


an  armed  force  previous  to  the  military  congregation 
at  Black  Rock.  That  it  is  therefore,  proper  to  sup- 
pose, that  that  military  array  was  the  force  which  en- 
tered upon  Navy  Island,  particularly  as  we  have  no 
evidence  that  it  was  disbanded,  and  as  we  find  Suth- 
erland, defendant  and  others  who  were  at  Black  Ruck, 
on  the  Island." 

If  this  be  a  legal  construction  of  testimony — 
if  suppositions  can  be  thus  extended  against  an  accus- 
ed in  our  courts,  whose  life  shall  be  held  secure? 
or  who.se  liberty  shall  be  vouched  safe  to  him  1  Let 
these  opinions  advanced  by  your  honor  become  a  judi- 
cial rule,  and  every  banker  may  be  convicted  as  a  rob- 
ber— and  every  merchant  as  a  thief. 

Your  honor  says — "  we  have  no  evidence  that,  (the 
affair  at  Black  Rock,)  was  disbanded."  But,  let  me 
ask — did  not  Brace  and  Barton,  both  testify  "  that 
they  took  and  carried  off  from  Black  Rock,  all  the 
arms  they  could  find  ?'^  And  was  not  the  disarming—" a 
disbanding  of  the  expedition,"  if  there  had  been  one 
organized  ?  Was  it  proved  that  any  individual  who 
was  seen  at  Black  Rock,  was  ever  seen  on  Navy 
Island,  except  VanRen.sselaer,  Mackenzie  and  myself? 
And  has  not  your  honor  told  us  that  we  had  a  right 
to  shoulder  our  muskets  and  go  to  Canada  if  we 
pleased?  And  where  is  the  evidence  that  we  did 
not  enter  upon  Navy  Island  in  precisely  the  manner 
your  honor  has  told  us  it  was  lawful  for  us  to  go?  I 
look  in  vain  for  it  in  the  published  report  of  the  tes- 
timony— and  neither  your  honor,  nor  the  United 
States  Attorney ,  has  stated  any  such  to  have  been  de- 
posed. In  this,  surely,  your  honor  would  reverse  the 
legal  and  just  rule,  "  that  a  man  should  be  presumed 
innocent  until  you  have  proved  him  guilty"— for  you 


ifr  : 


:oDgregation 
per  to  sup- 
:e  which  en- 
we  have  no 
e  find  Suth- 
Black  Ruck, 

testimony — 
ist  an  accus- 
leld  secure  ? 
)  him  1  Let 
jcomeajudi- 
ted  as  a  rob- 

icethat,  (the 
But,  let  me 
estify  «  that 
[)ck,  all   the 
isarming— "a 
fid  been  one 
ividual  who 
en  on  Navy 
and  myself? 
e  had  a  right 
anada  if  we 
that  we  did 
the  manner 
IS  to  go?  I 
of  the  tes-  • 
the  United 
Jve  been  de- 
reverse  the 
}e  presumed 
y" — for  you 


45 


judge  him  guilty,  without  having  proved  one  fact 
which  went  to  make  up  the  offence.  Mackenzie,  on 
Navy  Island,  was  in  his  own  country — out  of  the 
jurisdiction  of  the  laws  of  the  United  States,  where 
he  had  a  right  to  be;  and  so  far  as  the  United  States 
government  was  concerned, it  was  not  unlawful  forVan 
Rensselaer,  myself  or  any  other  citizen  of  the  United 
States,  to  he  in  arms  on  Navy  Island.  Then,  from 
the  exercise  of  a  lawful  act,  shall  an  unlawful  one  be 
inferred!  If  there  was  nothing  wrong  in  our  being 
on  Navy  Island — and  f.ny  possibk  manner  of  our 
getting  there  without  committing  an  offence  against 
our  own  government — no  oflTence  can  be  presumed. 
In  law,  the  possession  of  property  is  i^rima  Jacie  evi- 
dence of  ownership.  If  an  indivdual  possess  a  watch, 
it  is  to  be  presumed  he  came  honestly  by  it— until  it 
is  established  by  positive  proof  that  it  was  obtained 
by  fraud  or  force.  It  should  be  presumed  that  Van 
Rensselaer,  Mackenzie  and  myself,  in  proceeding  to 
Navy  Island,  went  in  the  manner  allowed  by  our  laws, 
until,  by  positive  testimony,  it  is  established  that  our 
course  was  unlawful. 

Again;  the  legality  as  well  as  the  propriety  of  in- 
quiring into  acts  done  beyond  the  jurisdiction  of  our 
goveinment,  in  prosecutions  of  this  nature,  may  well 
be  questioned.  The  foreign  country  which  has  been 
entered  into  by  the  inquiries  on  the  trial  of  Macken> 
zie,  has  been  proved  lately  to  have  been  in  a  &tate  of 
civil  commotion— and  the  person  on  trial  to  have  been 
in  arms  against  the  goverment  thereof,  which  circum- 
fitanoes,  with  the  fact  that  the  suhpcenas  of  the  court 
have  no  force  there,  precluded  even  the  probability  of 
the  accused  being  able  to  bring  into  our  courts  such 
witnesses  as  might  be  necessary  to  rebut  the  teitimonj 


T^ 


T 


1 


40 


I  II  i: 

'i  ii  r, 


? 


i 


;!  -  I 


;i-\ 


t' 


I- 


iH 


ii' 


of  those  brought  by  the  United  States  Attorney  ;  or 
of  the  accused  being  able  to  have  testimony  taken 
by  commission  in  a  country  where  he  is  attainted  of 
treason  :  And  then  ;  the  offence  created  by  the  pro- 
visions of  this  sixth  section  of  the  statute  of  1818, 
will  always  have  within  our  own  borders,  the  neces- 
sary witnesses  to  fix  it  upon  the  real  perpetrators, 
whenever  the  offence  has  actually  been  committed. 
That  all  the  testimony  given  on  Mackenzie's  trial,  in 
relation  to  the  transactions  on  Navy  Island,  was  ir- 
relevant— and  ought  not  to  have  been  admitted.  Nor 
were  those  proceedings  any  of  the  matters  charged 
in  the  indictment. 

There  is  one  other  point  to  be  examined.  In  the 
2Cth  paragraph  of  your  honor's  charge  to  the  jury, 
it  is  said,  "  it  appears  that  Sutherland  was  there,  (at 
Black  Rock,)  Sutherland  who  had  been  at  the  thea- 
tre— Sutherland  who  had  aided  in  raising  these  forces, 
and  who  appeared  to  be  the  chief  officer  of  the  ex- 
pedition. Was  the  defendant,  (Mackenzie,)  connec- 
ted with  him  ?"  Then  your  honor  goes  on  to  say, 
"the  answer  to  this  question  must  depend  in  part, 
upon  the  Proclamation  which  has  been  brought  into 
court."  This  Proclamatioiij  which  the  United  States 
Attorney  in  the  5th  paragraph  of  his  canvass  of  the 
testimony  declares  to  be  "  material  and  important," 
is  a  paper,  that  one  Cadwailader,  sworn  as  a  witness 
on  the  part  of  the  prosecution,  is  reported  to  have 
testified,  '*  he  was  employed  to  print,  in  Dec.  1S37 — 
that  the  printinjj  was  done  in  the  city  of  Buffalo — that 
Mackenzie  read  the  proof  in  B:iff*alo — and  that  part 
of  the  edition  was  sent  to  Navy  Island — but  that  he 
did  not  know  that  ai:y  of  them  was  published  in  Buf- 
falo."   It  was  entitled  "  Proclamation  by  Wm.  Lyou 


47 


Itorney  ;  or 
nony  taken 

attainted  of 

by  the  pro- 
ite  of  1818, 

the  neces- 
erpetrators, 

committed, 
ie's  trial,  in 
and,  was  ir- 
nitied.  Nor 
era  charged 

ed.     In  the 
o  the  jury, 
IS  there,  (at 
U  the  thea- 
hese  forces, 
'  of  the  ex- 
e,)  connec- 
on   to  say, 
Jnd  in  part, 
rought  into 
litcd  States 
vass  of  the 
important," 
>s  a  witness 
•d  to   have 
'ec.  1S37— 
iffalo— that 
»d  that  part 
>ut   that  he 
'ed  in  Buf- 
Wm.  Lyou 


Mackenzie,  Chairman  pro  tern,  of  the  ProTincial  [Pro- 
visional] government  of  the  State  of  Upper  Canada  ;'^ 
and  is  alleged  by  the  United  States  Attorney,  to  bear 
date,  December  13,  1837 — though  I  do  not  find  in  any 
report  of  the  testimony,  that  it  was  so  dated. 

The  fixct  that  Mackenzie  issued  the  Proclamation  in 
question  from  Navy  Island,  as  assumed  by  your  honor, 
is  unquestionably  true;  but  I  cannot  perceive  that  it 
contains  any  link  of  testimony  whatever.  The  Proc' 
lamalion  says — **  We  have  procured  the  important  aid 
of  General  Van  Rensselaer,  of  Albany,  of  Col.  Suth- 
erland, Col.  Van  Egmond,  and  other  military  men  of 
experience" — but  1  am  wholly  unable  to  understand, 
wherein,  this  should  be,  ac  the  United  States  Attorney 
has  alleged,  "  an  important  declaration  and  admission'' 
against  Mackenzie. 

The  object  avowed  in  the  ProcJamatinn  is  the  es- 
tablishment of  the  independence  of  Upper  Canada  by 
an  overthrow  of  the  British  power  therein.  An  in- 
tent to  do  this,  included  no  contemplated  violation  of 
the  laws  of  the  United  States.  Nor  does  the  paper 
have  any  weight  to  show  Mackenzie's  consent  to  any 
unlawful  act  which  may  have  been  committed  by  Van 
Rensselaer  or  mvself 

If  the  whole  of  the  facts  stated  in  the  Proclamation 
were  true,  and  it  had  been  published  with  the  privity 
and  consent  of  all  those  who  were  therein  named,  it 
goes  to  establish  no  one  fact  in  support  of  the  aver- 
ments contained  in  the  indictment  against  Mackenzie. 
It  bears  date  at  a  place  within  the  Province  of  Upper 
Canada,  where  alone  is  there  any  proof  of  its  publica- 
tion ;  and  contrary  to  the  assertions  of  the  United 
States  Attorney,  there  was  no  fevidfence  adduced  to 
«haw  that  it  was  printed  before  the  occupancy  of 


Il   / 


I  ( 


■  '-I 


48 


Nary  Island  by  the  Patriots.  (Indeed,  there  was  no 
proof  to  show  when  or  by  whom  Navy  Island  was 
taken  possession  of  in  1837.)  It  is  perhaps,  evidence 
of  the  sinj^le  fact  ihat  Van  Rensselaer  and  myself  had 
been  employed  by  the  provisional  government,  then  on 
Navy  Island,  to  aid,  as  military  otiicers,  in  achieving 
the  independence  of  Upper  Canada— subject  to  being 
controverted  by  ourselves.  But  the  proving  of  this 
one  fact  establishes  the  existence  of  no  wrong — as  we 
had  the  right  of  being  so  employed. 

In  the  2 1st  paragraph  of  your  honor's  charge  to  the 
jury,  your  honor  has  said,  "  But  this  Proclamation-" 
is  only  important,  because  it  shows  that  the  defendant, 
( Mackenzie',)  recognizes  Sutherland  and  Van  Rens- 
selaer as  co-operators  with  him  in  the  expedition. — 
Thus  recognizing  these  men,  he  becomes  identified 
with  them.  If  it  is  proven  that  Sutherland  was  a  co- 
operator  with  the  defendant,  (Mtickenzie,)  he  is  res- 
ponsible for  the  acts  of  Sutherland.  The  defendant, 
(Mackenzie,) did  co-operate  with  Sutherland,  (as  your 
honor  says,)  is  evident  from  the  testimony :"  And 
this  I  add — 1  may  have  done  so  without  committing 
any  offence  against  the  laws  of  the  United  States  ! 
N  According  to  the  arguments  of  your  honor,  I  had  a 
right  to  go  into  Canada,  there  to  enter  the  service  of 
the  Patriots — but  if  they  employed  me,  they  must 
take  me  as  a  man  takes  a  wife — and  make  themselves 
responsible  for  all  my  previous  trespasses  and  debts. 

The  object  to  be  pursued, as  avowed  in  the  Proclam" 
a/ion,  was  the  achievement  of  the  liberties  of  the  peo- 
ple of  Upper  Canada — and  not  to  commit  a  violation 
of  the  laws  of  the  United  States.  If  it  were  true 
that  I  volunteered  my  services  to  Mackenzie,  to  serve 
in  Canada,  aa  a  military  officer,  and  be  had  aoeepted  my 


49 


ere  was  no 
Island  was 
)s,  evidence 
myself  had 
Ejnt,  then  on 
n  achieving 
ct  to  being 
ing  of  this 
ong — as  we 

mrge  to  the 
clamation — 
B  defendant, 
Van  Hens- 
:pedition. — 
s  identified 
id  was  a  co- 
,)  he  is  res- 
B  defendant, 
id,  (as  your 
>ny :"  And 
committing 
States ! 
nor,  I  had  a 
B  service  of 
they  must 
themselves 
ind  debts, 
le  Proclam" 
of  the  peo- 
a  violation 
were  true 
sie,  to  servA 
K)eeptedmy 


■ervices — there  was  no  wrong,  and  nothing  to  be  con- 
strue^' 'nto  an  offence  against  the  laws  of  the  United 
Stat(  Such  an  engagement  did  not  embrace  the 
fitting  out  of  an  expedition  in  the  United  States — nor 
for  my  unlawful  acts,  (if  there  were  any,)  did  Mac- 
kenzie thereby,  become  responsible,  as  your  h'^nor  has 
declared.  He  could  not,  by  any  accepted  principle  of 
law,  be  deemed  responsible  for  any  unlawful  acts 
rjk  committed  by  me,  unless  it  was  shown  he  had  ex- 
'  pressly  directed  them — or  been  present  and  counte- 
nanced their  performance.  Hence,  it  is,  that  this  l*roC' 
lamaliony  as  a  matter  of  evidence  to  sustain  the  in- 
dictment, entirely  falls  to  the  ground. 

Yo'^r  honor  was  certainly  in  error,  in  charging  the 
jur3  that  if  it  is  shown  there  was  a  combination, 
eacL  .  .nose  in  the  combination  must  be  held  respon- 
sible for  the  acts  of  all  his  co-operators" — although 
it  is  tFue,  *^  that  when  several  combine  together  for 
the  same  illei>^al pui pose^each  is  the  agent  of  the  rest ; 
and  any  act  done  by  the  one,  in  furtherance  of  the 
unlawful  design,  is  in  consideration  of  law,  the  act  of 
all.  •S'/o/icV  case,  1793,  cited  in  Starkie's  Evidence. 
Vol.  I.  p.  223.  In  the  case  of  conspiracy,  it  is  cited 
in  same  authority,  Vol.  I.  p.  234,  "  In  Hardy^s 
cafi-'y  (Gurney's  edition.  Vol.  I.  p.  360  to  369,) 
BuUer  J.  said — in  an  indictment  of  this  sort,  (for  con- 
spiracy,) there  are  two  things  to  be  considered  ;  first, 
whether  any  conspiracy  exists  ;•  next  what  share  the 
prisoner  took  in  that  conspiracy.  But  the  same 
learned  judge  afterwards  added,  "  before  the  evidence, 
(that  is  of  the  conspiracy  so  proved  to  exist,)  can 
affect  the  prisoner  materially,  it  is  necessary  to  make 
out  another  point,  namely,  "  that  he  consented  lo  the 
extent  that  ike  others  did.^* 


50 


The  principle  your  honor  has  advanced,  only  applies 
when  the  acts  are  unlawful  in  themselves,  and  neces- 
sarily connected  with,  or  are  in  furtherance  of  the 
avowed  objects  of  the  combination.  The  lav/  in  re- 
lation to  partnerships  may  be  cited  to  sanction  this 
principle 

The  United  States  Attorney,  in  the  8th  paragraph 
of  his  canvass  of  the  testimony,  has  said—"  in  order 
^.o  subject  a  party  to  the  penalties  of  this  act  of  Con- 
gress, it  is  not  necessary  for  the  prosecution  to  prove 
the  expedition  actually  invaded  into,  or  proceeded 
against  the  neutral  nation  :  it  is  enough  if  we  show 
the  intention  of  the  parties,  lo  the  satisfaction  of  the 
jury."  In  assuming  this  principle,  he  is  undoubtedly 
correct — but,  then,  there  was  no  offer  of  proof  to 
show  that  the  matter  at  Black  Rock,  which  has  been 
called  a  "  military  array,"  was  admitted  by  Macken- 
zie, or  any  other  person  connected  with  it,  to  have 
been  intended  to  be  carried  on  against  the  dominions 
of  the  United  Kingdom  of  Great  Britain  and  Ireland, 
or  any  other  country  at  peace  with  the  United  States; 
and  this  appears  to  be  well  understood  by  the  United 
States  Attorney  ;  for  he  goes  on  to  say — "  in  this  case 
I  have  chosen  to  prove  the  military  expedition  was 
conducted  into  the  British  territory."  Had  he  done 
so,  it  would,  without  question,  have  been  sufficient  to 
show  the  intent.  But  this  he  did  not  do.  I  chal- 
lenge any  one^to  point  to  a  single  item  of  evidence 
adduced  on  the  trial  of  Mackenzie,  which  went  to  es- 
tablish the  alleged  fact  that  any  military  evpedilion 
or  enterprize,  began  and  set  on  foot  within  the  juris- 
diction of  the  United  States^  was  conducted  to  JVart/ 
Island^  in  1837--in  which  either  William  Lyon 
Mackenzie,  Van  Rensselaer,  cr  myself,  were  in   any 


I 


^ 


61 


y  applies 
id  neces- 
ce  of  the 
av/  in  re- 
tion  this 

)aragraph 

in  order 

t  of  Con- 

i  to  prove 

proceeded 

we  show 

ion  of  the 

doubtedly 

f proof  to 

1  has  been 

Y  Macken- 

it,  to  have 

dominions 

nd  Ireland, 

ted  States; 

the  United 

in  this  case 

idition  was 

ad  he  done 

sufficient  to 

).     I   chal- 

of  evidence 

went  to  es- 

evpedition 

t   ike  juris- 

led  to  J^avy 

Ham    Lyon 

ere  in  any 


manner  connected  or  concerned.  It  is  apparent  that 
not  only  a  link  of  the  testimony  is  out — but  that  the 
whole  chain  is  gone,  which  should  reach  from  Black 
Rock  to  Navy  Island. 

Where,  then,  is  the  testimony  on  which  William 
Lyon  Mackenzie  has  been  convicted  of  having  of- 
fended against  the  provisions  of  the  act  of  Congress 
of  1818  ?  The  answer  is  this — and  this  only.  It 
was  proved  "  that  he  came  to  Buffalo  about  the  11th 
of  Dec.  1837,  and  on  the  evening  of  the  12th  of  the 
same  month,  he,  by  invitation,  attended  a  public 
meeting  of  the  citizens  of  Bufialo,  at  the  Theatre — 
♦old  the  grievances  of  ui-i  people  of  his  country — and 
(as  the  witnesses  have  said,)  called  upon  the  citizens 
of  Bufialo  to  give  aid — in  example  of  that  which  our 
forefathers  had  received  in  their  struggle  for  inde- 
pendence:'' and  in  this,  as  your  honor  has  said,  there 
was  nothing  wrong. 

"  That,  subsequently,  there  was  a  quantity  of  arms 
at  Black  Rock,  placed  in  a  vacant  house,  near  the 
ferry,  and  that  when  one  Brace  and  one  Barton  came 
there  to  claim  the  arms,  Mackenzie  was  there  and 
objected  to  the  arms  being  taken  away,  and  said  they 
were  the  very  property  they  were  trying  to  get,  and 
what  they  wanted — if  they  had  had  them  at  Toronto, 
they  would  have  succeeded.  That  they  wanted  the 
arms  in  Canada — and  that  as  soon  as  the  commit- 
tee in  Buffalo  could  be  consulted,  the  arms  should  be 
paid  for,  or  security  given  for  them :"  and  in  this 
there  was  nothing  wrong,  as  it  was  testified  that 
notwithstanding  Mackenzie's  interference,  "Brace 
and  Barton  did  take  and  carry  away  such  of  the 
arms  as  they  could  find." 

'*  That,  on  or  about  the  20th  of  December,  1837, 


0% 


I 


i 


/ 


t 


Sf:- 


he  was  seen  oa  Navy  Island,  in  the  Prorince  of  Up- 
per Canada,  with  a  body  of  armed  men ;  and  that 
from  thenee  he  issued  a  Proclamation^  as  chairman 
pro  tern,  of  a  provisional  government:"  but  this  con- 
atituted  no  offence  against  the  laws  of  the  United 
States  ;  though,  on  this  showing,  alone,  Mackenzie 
has  been  convicted  of  the  charge  contained  in  the  in- 
dictment. 

In  the  23d  paragraph  of  your  honor's  charge^  it 
appears  your  honor  told  the  jury,  **  that  they  must 
not  say  by  their  verdict,  that  all  men  may  come  to 
this  country  when  they  please,  and  aid  in  fitting  out 
expeditions  against  other  countries,  with  which  we 
are  at  peace."  To  this  sentiment,  1  say,  amen  !  and 
had  Mackenzie  been  proved  to  have  been  guilty  of 
any  such  offence — or  had  hi  been  Icf^alhf  convicted 
of  the  matters  with  which  he  was  charged,  and  for 
which  he  now  stands  condemned — he  might  sulTer  the 
penalty  of  the  laws  which  he  had  violated — and  I 
should  then  have  been  one  of  the  last  to  make  an  ap- 
peal in  iiis  behalf-,  fur  I  am  not  one  who  desires  that 
our  country  and  our  laws,  should  be  made  the  sport 
of  foreigners  ;  and  I  hold  that  when  such  are  regu- 
larly convicted  of  having  oli'ended  against  our  neu- 
trality laws,  they  are  thrice  as  guilty  as  citizens. 
In  supposing  that  Mackenzie  could  have  ^^  began, 
set  on  foot  a  military  expedition  or  enterprize,"  as 


or 


alleged,  'pon  my  word,  your  honor  has  done  great  in- 
justice to  the  good  sense  and  character  of  the  Amer- 
ican people  residing  on  the  western  irontier.  As  to 
Mackenzie  having  provided  or  prepared  the  r::>o:ins 
for  an  expedition  or  enterprize,  the  fact,  which  is 
well  known,  that  he  was  at  the  very  moment  a  refu- 


i 


4^ 


of  Up- 
nd  that 
lairman 
his  con- 
United 
Lckenzie 
i  the  in- 

ar^e^  it 
?y  must 
come  to 
incr  out 
hich  we 
en !  and 
;uiity  of 
convicted 

and  for 
uffer  the 
— and  I 
e  an  ap> 
ires  that 
he  sport 
re  regu- 
our  ncu- 
iizens. 
"began, 
rize,"  as 
great  in- 
le  Amer- 
As  to 
le  rn«»!;ns 
which  is 
t  a  refu- 


"J 


f^rviceS'— there  was  no  wrong,  and  nothing  to  be  con-^ 
s(rued  into  an  offence  against  the  laws  of  the  United 
States.  Such  an  engagement  did  not  embrace  the 
fitting  out  of  an  expedition  in  the  United  States — nor 
for  my  unlawful  acts,  (if  there  were  any,)  did  Mac- 
kenzie thereby,  become  responsible,  as  your  honor  has 
declared.  He 'could  not,  by  any  accepted  principle  of 
law,  be  deemed  responsible  for  any  unlawful  acta 
committed  by  me,  unless  it  was  shown  he  had  ex- , 
pressiy  directed  them—or  been  present  and  counte- 
nanced their  performance.  Hence,  it  is,  that  this  l^roc" 
laination^  as  a  matter  of  evidence  to  sustain  the  in- 
dictment, entirely  falls  to  the  ground. 

Your  honor  was  certainly  in  error,  in  charging  the 
jury,  *'  that  if  it  is  shown  there  was  a  combination, 
each  of  those  in  the  combination  must  be  held  respon- 
sible for  the  acts,  of  all  his  co-operators" — although, 
it  is  true,  "  that  when  several  combine  together  for 
the  same  ilUf^al  purpose, each  is  the  agent  of  the  rest ; 
and  any  act  done  by  the  one,  in  furtherance  of  the 
unlawful  design,  is  in  consideration  of  law,  the  act  of  •, 
all.  Slone^s  case,  l79QyC'iied  in. Starkie's, Evidence. 
Vol.  I.  p.  223.;  In  the  case  of  conspiracy,  it  is  cited 
in  same  authority,  Vol.  I.  p.  234,  "  In  HardyU  ! 
co.f«,  (Gurney's  edition,  Vol.,  I.  p.  360  to  369,) 
Buller  J.  said — in  an  indictment  of  this  sort,  (for  con- 
spiracy,) there  are  two  things  to  be  considered  ;  first, 
whether  any  conspiracy  exists  ;  next  what. share  the 
prisoner  took  in  that  conspiracy.  But  the  same 
learned  judge  afterwards  added,  "  before  the  evidence, 
(that  is  of  the  conspiracy  so  proved  to  exist,)  can 
affect  the  prisoner  materially,  it  is  necessary  to  make 
out  another  point,  namely,  <<  that  he  consented  to  thi 
•xUnt  that  tht  others  did.^^ 


n 


63 


he'was  vsen  on  Navy  Island,  in  the  Province  of  Up* 
per  Canada,  with  a  body  of  armed  men ;  and  that 
from  thence  he  issued  a  Proclamation,  as  chairman 
pro  tern,  of  a  provisional  government:"  but  this  con- 
stituted no  offence  against  the  laws  of  the  United 
States  ;  though,  on  this  showing,  alone,  Mackenzie 
has  been  convicted  of  tlie  charge  contained  in  the  in- 
dictment. 

In  the  23d  paragraph  of  your  honor's  charge,  it 
appears  your  honor. told  the  jury,  ^MhiU  they  must 
not  say  by  their  verdict,  that  all  men  may  come  to 
this  country  when;they  please,  and  aid  in  fitting  out 
expeditions  against  other  countries,  with  which  we 
are  at  peace."  To  this  sentiment,  1  say,  amen !  and 
had  Mackenzie  fc^een  proved  to  have  been  guilty  of 
any  such  offence — or  had  hj  been  lt»;allij  convicttd 
of  the  matters  with; which  he  was  charged,  and  for 
which  he  now  stands  condemned — he  might  suffer  the 
penalty  of  the  laws  which  ho  had  violated — aud<  I 
should  then  have  been  one  of  the  last  to  make  an  ap- 
peal in  his  behalf;  for  I  am  not  one  who  desires  that 
our  country  and  our  laws,  should  be  made  the  sport 
of  foreigners  ;  and  I  hold  that  when  such  are  regu- 
larly convicted  of  having  offended  against  our  neu- 
trality laws,  they  are  thrice  as  guilty   as  citizens. 

In  supposing  that  Mackenzie  could  have  ^'begani 
or  set  on  foot  a  military  expedition  or  enterprize,"  as 
alleged,  'pon  my  word,  your  honor  has  done  great  in- 
justice to  the  good  sense  and  character  of  the,  Amer- 
ican people  residing  on  the  western  frontier.  As  to 
Mackenzie  having  provided  or  prepared  the  means 
(or  an  expedition  or  enterprize,  the  fact,  which  is 
well  known,  that  he  was  at  the  very  moment  a  refu- 


53 


of  Up- 
nd  th«t 
liairman 
his  con- 
United 
ackenzie 
n  the  in- 

har^e,  it 
ey  must 

come  to 
ting  out 
rhich  we 
len!  and 

utity  of 
convicted 

and  for 

ufferlhe 

J — and' I 

ke  an  ap- 

sires  that 

the  sport 

ire  rcgu* 

our  ncu- 

tizens. 

"  began, 

»rize,"  as 

great  in- 

le.Amer- 

As  to 

le  means 

which  is 

it  a  refu- 


u 


gee  in  the  country,  naked  and  pennyless,  i3  a  suffi- 
cient denial  of  the  charge. 

What  was  done  by  the  people  of  the  frontier,  in  aid 
of  the  struggle  for  Canadian  Independence,  was, 
alone,  prompted  by  the  love  they  bore  for  repub- 
lican INSTITUTIONS — and  the  desire  they  entertained 
that  all  America  should  be  free  !  What  then  took 
place,  would  have  occurred  if  William  Lyon  Mac- 
kenzie had  not  been  there.  American  people  with 
American  principles,  require  not  the  agency  of  a 
stranger  and  a  refugee  to  move  them  to  act  in  such 
a  cause.  When  they  interfered  in  the  political  affairs 
of  the  Canadas.  they  did  so  because  they  believed 
there  was  to  be  a  hearty  struggle  for  liberty  :  and  of 
this  interference,  Her  Majesty's  High  Commissioner 
and  Governor  General  of  the  Provinces  of  Canada 
has  said  it  was  "  somewhat  generous" — and  we  who 
were  the  actors,  believe  it  to  have  been  quite  so. 

If  the  gossiping  editors  of  newspapers  in  our  coun- 
try, for  the  purpose  of  cramming  the  gaping  multi- 
tude, have  seen  tit  to  represent  Mackenzie  as  the 
principal  agent  in  proceedings  in  which  he  had  no 
more  real  importance  than  a  chip  in  a  flood — it  is  no 
reason  why  discredit  should  be  made  to  come  upon 
our  judiciary  institutions,  in  carrying  out  the  joke, 
by  making  him  responsible  for  those  proceedings  : — 
Nor  should  he  be  held  accountable  for  matters  which 
he  neither  controlled  nor  had  any  real  agency  in,  be- 
cause his  vanity  may  have  led  hira,  like  the  fly  in  the 
coach,  to  cry  out — "  what  a  dust  1  raise  P'  and  the 
more  especially,  when  there  has  been  no  testimony 
given  of  his  having  committed  any  one  unlawful  act. 
Our  laws  are  intended  to  have  regard  to  ofl^ences  and 
not  to  individuals — and  ought  to  be  applied  without 

H 


54 


i 


prejudice,  whether  it  were  a  British  Marquis  on  trial 
for  breaking  the  lamps  in  our  streets,  or  a  Canadian 
x'alriot,  on  a  charge  of  having  attempted  to  fit  out  an 
expedition  within  our  borders,  to  give  political  liberty 
to  the  people  of  his  country. 

In  the  second  paragraph  of  your  honor's  char  ore  to 
the  jury,  it  is  said,  "  admitting  it  to  be  true,  that  all 
that  Mackenzie  is  charged  with  having  done,  had 
been  done  vvith  impunity  in  the  case  of  Texas,  South 
America,  Greece,  &c. — it  had  no  bearing  in  his 
case."  This  may  be  true,  in  point  of  law — but  jus- 
tice requires  some  modification  of  the  rule. 

In  a  free  government,  like  ours,  the  laws  are 
formed  to  secure  the  conceded  rights  of  the  people. 
They  are  the  rules  adopted  by  the  expression  of  the 
public  opinion,  for  the  government  of  our  intercourse 
in  society.  The  public  voice  is  the  true  basis  of  ev- 
ery law;  and  the  public  voice  may  deprive  a  law  of 
its  force — and  in  eflect  annul  it,  though  it  be  per- 
mitted still  to  hold  a  place  upon  the  statute  book. — 
The  legislative  representatives  of  the  people,  mista- 
king the  \\'\\\  of  their  constituents,  sometimes  make 
laws  which  are  altoijether  disregarded.  Other  laws, 
popular  when  enacted,  become  odious  in  time,  and 
lose  their  effect  by  general  consent.  This  has  of- 
ten occurred  in  our  country,  while  the  obnoxious, 
or  dire^arded  laws  remained  for  years  unrepealed. 
It  would  be  a  tyranical  and  unjust  principle  that  would 
allow  a  law  which  has  been  suffered  to  remain  a  dead 
letter  for  many  years,  and  its  provisions  to  be  viola- 
ted with  impunity,  to  be  put  in  force  against  a  par- 
ticular individual,  while  thousands  offend  and  go  un- 
molested. True  liberty  can  only  exist  where  the  laws 
have  an  equal  effect  on  all  who  are  in  the  community. 


55 


I 


At  this  very  time,  a  statute  is  in  existence  in 
this  state,  declaring  the  passing,  offering  to  pass,  or 
receiving  the  notes  of  banks  not  incorporated  by  the 
legishiture  of  this  state,  under  ihe  denomination  of 
five  dollars,  a  misdemeanor,  and  subjecting  the  of- 
fender to  (ine  and  imprisonment.  Yet,  the  law  has 
been  regarded  by  no  one— and  the  bills  it  was  inten- 
ded to  prohibit  from  circulation,  have  remained  in 
general  use,  as  a  currency,  throughout  the  state. — 
The  clergyman  receives  them  in  payment  for  his  la- 
bor in  the  holy  desk — the  lawyer,  the  judge,  and  the 
clerks  of  our  courts  take  them  for  their  fees — the 
merchant  accepts  them  for  his  goods— and  the  me- 
chanic, and  laboring  man  is  paid  with  them  for  his 
services  ;  and  no  one  is  prosecuted  for  a  violation  of 
the  law.  Under  these  circumstances,  to  inflict  the 
penalty  of  this  law  in  a  few  isolated  cases,  would  be 
t'he  extremest  act  of  tyrany.  If  it  be  allowed,  then 
our  laws  are  no  longer  the  means  of  preserving  the 
well  being  of  society — but  become  engines  in  the 
hands  of  the  wicked  for  the  purposes  of  revenge. 

If  the  people  will  violate  a  law,  duly  enacted  by  the 
legislature,  and  make  void  its  whole  provisions  for 
mere  convenience  sake,  how  much  more  tolerable 
might  the  violation  of  a  law  he  regarded,  when  it  is 
done  for  the  purpose  of  giving  political  freedom  to  a 
people,  groaning  under  the  oppression  of  a  military 
despotism. 

1  have  now  canvassed  all  of  that  I  conceive  to 
be  defects  in  the  proceedings  on  the  trial  of  Will- 
iam Lyon  Mackenzie — and  1  must  believe  I  have 
made  it  apparent  to  your  honor,  that  there  was  great 
error  committed  in  the  said  proceedings — and  that 
Mackenzie  has  been  convicted  contrary  to  the  facts^ 


iF" 


,    ,,    .-A 


: 


56 


and  in  violation  of  the  law  applicable  to  his  case;  and 
that,  therefore,  his  case  presents  a  proper  ground 
for  the  interference  of  the  Executive  Authority  of 
the  government. 

In  choooingthe  language  for  the  expression  of  my 
opinions  and  arguments,  in  these  pages,  it  has  been 
my  desire  to  be  respectful  and  courteous  ;  and  if  I 
have  expressed  aught  in  a  manner  that  may  be  deem- 
ed exceptionable,  I  beg  your  honor  will  not  regard 
it  as  resulting  from  any  intention,  on  my  part,  to  be 
indecorous.  If  I  ask  your  honor  to  reverse  an  opin- 
ion—  it  ought  not  to  be  regarded  a  disrespectful  as- 
surance. All  courts  of  appeal  are  founded  upon  the 
presumption  that  subordinate  courts  may  err  ;  and 
the  volumes  of  judicial  reports,  now  in  use  in  our 
courts,  afford  knowledge  of  many  instances  of  learn-' 
cd  judges,  when  sitting  in  the  superior  tribunal,  vot-» 
ing  to  reverse  decisions  made  by  themselves  while 
presiding  in  a  court  below.  Then?fore,  I  request 
that  your  honor  will  certify  to  the  President  of  the 
United  States,  by  an  early  day,  the  proceedings  on 
the  trial  of  William  Lyon  Mackenzie — and  that  your 
honor  will  make  such  other  suggestions  to  the  presi- 
dent as  shall  enable  him  speedily  to  cause  the  release 
of  Mackenzie  from  imprisonment,  by  granting  to  him 
a  pardon  ;  and  thereby  to  remove  what  is  now  re- 
garded a  just  matter  of  complaint  by  a  large  portion 
of  the  people  of  the  United  States,  and  may  other- 
wise be  fixed  as  a  stain  upon  our  national  character, 
and  a  discredit  to  the  perfectness  and  justness  of  our 
institutions. 

Very  Respectfully,  Sir,  ' 

Your  Obedient  Servant, 

TH :  J.  SUTHERLAND. 


,t  »  t 


sase;  and 
r  ground 
Ihority  of 

ion  of  my 
has  been 
and  if  I 
be  deem- 
ot  regard 
art,  to  be 
e  an  opin- 
ectful  as- 
l  upon  the 
err  ;  and 
se   in  our 
s  of  learn^ 
3unal,  vot- 
ves  while 
I    request 
lent  of  the 
edings  on 
d  that  your 
I  the  presi- 
the  relense 
ting  to  him 
s  now   re- 
rge  portion 
nay  other- 
character, 
ness  of  our 


ILAND. 


